Jerzy Jendrośka Access to Justice in Environmental Matters under the Aarhus Convention Seminar on Access to Courts in Environmental Law Matters European Judicial Training Network Lisbon 8-9 October 2013 Jerzy Jendrośka1

Content Aarhus Convention – origins and structure Compliance mechanism Access to justice in Aarhus Convention Access to justice – compliance issues Jerzy Jendrośka2

3 Aarhus Convention - origins Conceptual roots – trend in international and Community 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

UNECE Aarhus Convention Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters – adopted and signed in Aarhus (Denmark) – entry into force – PRTR Protocol adopted and signed in Kiev – GMO Amendment adopted and signed in Almaty (Kazakhstan) 4Jerzy Jendrośka

Role of the Aarhus Convention First binding international instrument to address citizen’s environmental rights Benchmark and 'world' standard Aarhus Convention as a benchmark Provides links between environmental protection and: – human rights – democratization – government accountability Aarhus Convention in EU – part of the acquis – Member States implement Aarhus via EU law 5Jerzy Jendrośka

Right to environment Principle 1 of the Stockholm Declaration – right to environment acknowledged in ‘soft law’ Principle 10 Rio Declaration silent on right to environment Right to environment in Aarhus: – binding legal instrument – non-binding language 6Jerzy Jendrośka

Jendrośka Jerzmański Bar i Wspólnicy; 7 Structure of the Convention Objective – right to environment (art. 1) Definitions (art. 2) General provisions (art. 3) Operative provisions – 3 pillars (art. 4-9) Meeting of the Parties (art.10) Compliance mechanism (art.15)

3 pillars Access to information – passive disclosure – Art. 4 – active disclosure – Art. 5 Public participation – decisions whether to permit specific activities „which may have a significant effect on the environment” - art 6 – GMO decisions – Art. 6 bis – plans/programs „relating to environment”– Art. 7 – policies „relating to environment” – Art. 7 – normative acts/legally binding rules „that may have a significant effect on the environment” – Art. 8 Access to justice – reddress in case of abusing right to information - art.9.1 – reddress in case of abusing right to participate - art.9.2 – separate right to file a public interest law suit - art.9.3 8Jerzy Jendrośka

9 Scope of the Convention Main substantive elements – Access to justice as a third pillar – Public participation in strategic decisions Application to EU institutions Contentious issues: – PRTR – Public participation in GMO decisions

Jerzy Jendrośka10 Legislative techniques „Shall” vs „should” „Flexibility’ clauses Enabling provisions Role of preamble

Jerzy Jendrośka11 „Flexibility” clauses shall endeavour should strive to the extent appropriate where appropriate within the framework of national legislation

Jerzy Jendrośka12 Adoption and entry into force Adopted and signed in Aarhus in 1998 Entry into force in 2001

Jerzy Jendrośka13 Developments MOP I Lucca 2001 – compliance mechanism adopted – GMO Guidelines MOP extra – Kiev 2003 – PRTR Protocol MOP II Almaty 2003 – GMO amendment – PPFiF Guidelines – decisions concerning compliance MOP III Riga 2008 MOP IV Chisinau 2011

Precedential features Rights–based approach Procedural rights as guarantees for a right to environment Promotion of public participation in international processes Open to non UNECE countries 14Jerzy Jendrośka

Direct effect of Aarhus Convention Direct effect at EU level – Case C-240/09 Lesochranarske: art.9.3 has no direct effect but standard test of direct effect applicable Direct effect in Parties – no direct effect because of article 3.1 („Each Party shall take the necesary legislative, regulatory and other measures..”) – verdicts in Czech Republic and Poland – each provision separately judged (ie. paragraphs 1,2,3 and 7 of Art.6 produce direct effect according to Conseil d’Etat in France) 15Jerzy Jendrośka

Aarhus Convention – status and role in Europe Aarhus Convention as a benchmark Aarhus Convention in EU – part of the acquis – Member States implement Aarhus via EU law – European Commission and ECJ as enforcers 16Jerzy Jendrośka

Aarhus Compliance mechanism Compliance Committee – nine independent members – 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 (60 hitherto) 17Jerzy Jendrośka

18 Monitoring compliance mechanism Implementation reports Compliance Committee Compliance procedure

Jerzy Jendrośka19 Compliance Committee Nine independent members (eight before MoP-3 in 2008) Elected to serve in personal capacity Regional balance Nomination by MOP

Jerzy Jendrośka20 Compliance procedure Triggers – Submission by Party about another Party (1 hitherto) – Submission by Party about itself – Referrals by secretariat – Communications by the public (almost 100 hitherto)

Case-load of Compliance Committee 93 communications from public; 1 submission 63 communications determined admissible 42 sets of findings – 25 Non‐compliance – 16 No non‐compliance (including C/32 (EU) Part I) – 1 No conclusion 2 cases closed; issues “resolved” domestically 2+3 cases with summary proceedings procedure 1 case of joint findings ca 20 pending cases – (Summer 2013) Jerzy Jendrośka21

Key issues Template for complaint Criteria for admissibility Exhaustion of domestic remedies Procedure – Hearing (possibility to be represented) – Draft findings available for comments – All documents publicly available Follow-up Jerzy Jendrośka22

Types of non-compliance General failure by a Party to take the necessary legislative, regulatory and other measures timplement the Convention Failure of legislation, regulations, other measures or jurisprudence to meet specific Convention requirements Specific events, acts, omissions or situations demonstrating a failure by public authorities or courts to comply with (or enforce )the Convention Jerzy Jendrośka23

Legal effect 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 Measures – Declaration of non-compliance – Caution – Suspension of rights Jerzy Jendrośka24

Implications In relation to particular case – no retro-active effect – strategy to rectify situation to be adopted, submitted to CC, and implemented As a reference point for – implementing the Convention in legislation – interpreting the Convention in particular cases Jerzy Jendrośka25

Jendrośka Jerzmański Bar & Partners; 26 Acces to Justice Art.9.1-3: redress in 3 situations Art.9.4: requirements concerning – remedies – procedures Art.9.5: practicalities – information – assistance

Jendrośka Jerzmański Bar & Partners; 27 Art.9.1,2 and 3: redress Art.9.1: redress in case of abusing right to information (relation to Art.4) Art.9.2: redress in case of abusing right to participate (relation to Art.6 and possibly other provisions) Art.9.3: separate right to file a public interest law suit (relation to Art.1)

Jendrośka Jerzmański Bar & Partners; 28 Art remedies Adequate Effective Include injunctive relief

Jendrośka Jerzmański Bar & Partners; 29 Art.9.4: review procedures Fair and equitable Timely Not prohibitively expensive

Jendrośka Jerzmański Bar & Partners; 30 Information and assistance – Art.9.5 Information - relation to – Art.3.5 – Art.4.7 – Art.5.7b) Assistance - relation to Art.3.2

Jerzy Jendrośka31 Redress - access to information (Art.9.1) Reasons: – Request ignored – Request wrongfully refused – Request inadequately answered – Request otherwise not dealt in accrdance with Article 4 of the Convention

Jerzy Jendrośka32 Review procedures under art.9.1 Administrative review – Expeditious – Free of charge or inexpensive – Administrative appeal or ombudsman Court reviev Final decision – Binding – Reasons stated in writing

Jerzy Jendrośka33 Additional measures – best practice Damage caused by unlawful treatment of request for information can be claimed at court (Tajikistan) Unlawful refusal (in practice – lack of reaction) of information may be sanctioned by criminal sanctions (Poland)

Jendrośka Jerzmański Bar & Partners; 34 Art scope Reasons – Substantive or procedural legality – Decision, act or omission subject to Article 6 Art..6.1.a) – activities in Annex I Art.6.1 b) - – Other relevant provisions where so provided for under national law Court review and (preliminary) administrative review

Jendrośka Jerzmański Bar & Partners; 35 Art standing Members of the public concerned (art.2.5) – affected or likely to be affected – having an interest in environmental decision-making – role of NGOs Criteria for standing in art.9.2 – Sufficient interest – Impairment of a right – criteria in national law consistent with the objective of giving wide access to justice

Jerzy Jendrośka36 Right under art.9.3 Role – in art.9 – in the Convention Who – standing What - scope

Jerzy Jendrośka37 Art role In addition and without prejudice to the review procedures under 9.1 and 9.2 Relation to the right (art.1) – of every person – of present and future generations – in an environment adequate to health and well- being

Jerzy Jendrośka38 Art standing Actio popularis ? Members of the public – meeting the criteria (if any) – laid down in national law Definition of the public (art.2.4) – natural or legal persons – including associations, organizations and groups

Jerzy Jendrośka39 Art 9.3 – scope To challenge acts or omissions – by private persons or public authorities – which contravene provisions of national law relating to the environment Only enforcement action modelled on citizens suit in USA or catch-all provision Review – administrative or – judicial

Jerzy Jendrośka40 Implementation - access to justice Often problem with jurisprudence and not legislation Overview of cases – Art.9.1 – relatively rear (mostly timeliness) – Art Lack of access to justice in individual cases Lack of effective access to justice – Art general legislative failures – Art. 9.2 and 3 - criteria for standing for NGOs and some indiviidual members of the public (tenants) – Art Costs Effective remedies Timeliness

Art. 9.2 – key issues Problems in legislations based on „protection of rights” with addressing – procedural legality (ACC/31/ Germany) – substantive legality (ACC/50/Czech Republic) – general environmental issues (ACC/48/ Austria) Screening decisions and Art. 9 (ACC/50/Czech Republic and (ACC/48/ Austria) „Sufficient” vs „substantial’ or „legal” interest Rights of tenants Standing vs scope of review Jerzy Jendrośka41

Art.9.3 – landmark cases ACCC/11 Belgium: No non-compliance ACCC/18 Denmark: No non-compliance Conditional findings Attention to the “general picture” on access to justice Both cases frequently cited in subsequent findings Jerzy Jendrośka42

Art key issues No “actio popularis” required National criteria, “if any”, must not effectively bar all or almost all NGOs or other members of the public from A2J Interpretation towards „catch-all” provision Administrative, civil and penal procedures Standing of NGOs in sectoral laws Jerzy Jendrośka43

EU as „national law” „in the context of article 9, paragraph 3, also applicable European Community law relating to the environment should be considered to be part of the domestic, national law of a member state” ACCC/C/2006/18 Denmark Jerzy Jendrośka44

Actio popularis? „the Parties are not obliged to establish a system of popular action (“actio popularis”) in their national laws with the effect that anyone can challenge any decision, act or omission relating to the environment” ( ACCC/C/2006/18 Denmark) Jerzy Jendrośka45

Criteria „ On other the hand, the Parties may not take the clause “where they meet the criteria, if any, laid down in its national law” as an excuse for introducing or maintaining so strict criteria that they effectively bar all or almost all environmental organizations or other members of the public from challenging act or omissions that contravene national law relating to the environment (ACCC/C/2006/18 Denmark) Jerzy Jendrośka46

Art.9.4 and 9(5) – landmark cases ACCC/23/27/33 (UK): Non-compliance ACCC/36 (Spain): Non-compliance Unfair allocation of costs Quantum of costs: “despite the various measures available to address prohibitive costs, taken together they do not ensure that the costs remain at a level which meets the requirements under the Convention ” Consider cost system as a whole Jerzy Jendrośka47

Access to Justice – harmonization of laws in EU Member States Art.9.1 – Access to Information Directive Art.9.2 – EIA Directive (art.6.1 a) – IED (IPPC) Directive ((art.6.1 a) – Seveso III Directive ((art.6.1 a or b?) Art.9.3 – Directive 2004/35 on Environmental Liability – draft Directive on Access to Justice – Verdict in Case C-240/09 Lesochranarske: Jerzy Jendrośka48

Ac cess to Justice in relation to EU institutions P rovisions in the Treaties and restrictive interpretation by ECJ Special procedure in the Aarhus Regulation 1367/2006 Case ACCC/32 EC Jerzy Jendrośka49

Access to Justice – standing at EU level ECJ interpretation of „directly and individually concerned” scrutinised by ACC (ACCC/32/ EC) – „if the jurisprudence of the EU Courts…were to continue, unless fully compensated for by adequate administrative review procedures, the Party concerned would fail to comply with article 9, paragraphs 3 and 4, of the Convention” – „a new direction of the jurisprudence of the EU Courts should be established in order to ensure compliance with the Convention” Preliminary ruling „neither in itself meet the requirements of access to justice in article 9 of the Convention nor compensate for the strict jurisprudence of the EU Courts” Jerzy Jendrośka50