A ARHUS C ONVENTION AND THE EU : A GENERAL OVERVIEW PARTICIPATORY AND PROCEDURAL RIGHTS IN ENVIRONMENTAL MATTERS Warsaw, 4-6th March 2015

Content  Genesis and historical development  Functioning of the Aarhus Convention  Implementation of the Aarhus Convention into EU law

Genesis of the Aarhus Convention Conceptual roots – better environmental governance, participatory environmental democracy, citizens to get involved, have their say, influence, contributing to decision- making NGOs as watchdogs

Genesis of the Aarhus Convention  Community (EU) law –Directive 85/337 EIA –Directive 90/313 access to environmental information –Directive 96/61 IPPC Trends in international 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

Genesis of the 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  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 2012

Functioning of the Aarhus Convention  Organisational structure of the Aarhus Convention  Political level – Bureau  Coordination and administration – Aarhus Secretariat  Preparation 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

Functioning of the Aarhus Convention  Role of the Aarhus Compliance Committee (ACC) –nine independent members having „recognised competence” –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

Functioning of the Aarhus Convention  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 –declaration of non-compliance –caution –suspension of rights and priviliges

Functioning of the Aarhus Convention  Three pillar structure  Pillar I – access to information  Pillar II – public participation  Pillar III – access to justice (the guarantee element)  Interconnectivity between the three component parts in order to ensure effectiveness

Functioning of the Aarhus Convention  The Aarhus Convention  Article 2 definitions  Article 3 principles  Article 4 and 5 on information  Articles 6, 7 and 8 on participation  Article 9 (1), (2), (3), (4), (5)  Access to justice covering access to info, participation and general environmental topics

Functioning of the Aarhus Convention  Main 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.

Functioning of the Aarhus Convention  Main 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.

Functioning of the Aarhus Convention  Main definitions  Environmental information:  any information in written, visual, aural, electronic or any other material form on  The 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 structures

Functioning of the Aarhus Convention  Main 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."

Functioning of the Aarhus Convention  Main definitions:  "public authorities”  Covering:  - Public functions,  - Emanation of state  - Main idea, those are covered who de facto carry out public functions even if private entities

Functioning of the Aarhus Convention  The Aarhus Convention and access to justice  Article 9 (1), (2), (3), (4), (5)  Access to justice covering access to info, participation and general environmental topics

Functioning of the Aarhus Convention Article 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 interests

Functioning of the Aarhus Convention Art 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 public

Functioning of the Aarhus Convention Article 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 justice

Functioning of the Aarhus Convention Definitions:  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.

Functioning of the Aarhus Convention Definitions:  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

Functioning of the Aarhus Convention Definitions: 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.

Functioning of the Aarhus Convention  Definitions:  Cross-undertakings in damages:  Requiring to give a bond or guarantee, if one wants to appeal  HOWEVER, VERY IMPORTANT:  Cannot be prohibitiveely expensive

Functioning of the Aarhus Convention Definitions: "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

Introduction: the EU and Aarhus  Art. 1 TEU –This 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. 10 –3. 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.

Introduction: the EU and Aarhus Recent 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.

Introduction: the EU and Aarhus Instruments 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)

Introduction: the EU and Aarhus  For the EU: Regulation 1367/2006  Interpretation 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…”

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.[…]"

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,”

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 (…)"

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

Introduction: the EU and Aarhus – recent political signals  Main problems encountered on access to justice  The general and special uncertainties on the  Court'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.

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 law

Introduction: the EU and Aarhus  Main judicial considerations in favour of harmonized rules  Clearly applicable rules  Legal certainty  No undue delays in interpreting unclear law  Clear rules for the public to defend its EU derived rights

The judges' perspective: Approach to judicial review  Indication regarding transposition –Original 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.

The judges' perspective: Approach to judicial review General 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