Recent developments on access to justice and mediation Rome Adam Daniel Nagy Compliance promotion, governance and legal issues, Unit A2 – Directorate General Environment

Structure  General concept of the Aarhus Convention (AC) and EU law  Recent political developments  Implementation of AC into CJEU case-law – interpretation of relevant provisions  Other related tools, such as mediation

Recent political developments (1) 2012 Communication on Improving the delivery of the benefits from EU environment measures: building confidence through better knowledge and responsiveness (COM/2012/95). Main aims are Improve konowledge-base, to improve access to justice, possibily issue guidance, To explore ways froward on complaint-handling and alternative dispute resolution More info: lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52012DC0 095:EN:NOThttp://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52012DC0 095:EN:NOT

Recent political developments (2) In its resolution of the European Parliament has explicitly called for the adoption of the proposed Directive on access to justice in its decision on the 7 th EAP. More info: European Parliament resolution of 20 April 2012 on the review of the 6th Environment Action Programme and the setting of priorities for the 7th Environment Action Programme – A better environment for a better life (2011/2194(INI))European Parliament resolution of 20 April 2012 on the review of the 6th Environment Action Programme and the setting of priorities for the 7th Environment Action Programme – A better environment for a better life2011/2194(INI) In the context of the European Parliament report on a collective redress working paper, the EP has called upon an EU instrument on injunctive relief in the environmental field More info: European Parliament resolution of 2 February 2012 on ‘Towards a Coherent European Approach to Collective Redress’ (2011/2089(INI))European Parliament resolution of 2 February 2012 on ‘Towards a Coherent European Approach to Collective Redress’2011/2089(INI)

Recent political developments (3) The Council conclusions on the 7 th EAP has also called for the improvement of access to justice in line with the Aarhus Convention. improving complaint handling at national level, including options for dispute resolution, such as mediation,; improving access to justice in line with the Aarhus Convention,”“ More info: Conclusions on setting the framework for a Seventh EU Environment Action Programme at the 3173rd ENVIRONMENT Council meeting Luxembourg, 11 June 2012;- More info: Conclusions on setting the framework for a Seventh EU Environment Action Programme at the 3173rd ENVIRONMENT Council meeting Luxembourg, 11 June 2012

Commission activities on access to justice Study carried out by Jan Darpö on the factual situation of 17 Ms, soon made available online for comments Economic implications of access to justice, including mediation, prepared by Maastrich University professor, Professor Faure Two expert meetings to be held in Bruxelles, one with MS experts and one with MS judges to comsult them on the main findings of the studies and ongoing project of eJustice portal 12th and 26th November 11 studies and a synthesis report will follow More info: participation/meetings-and-events/public-participation/public- participation/2012/fifth-meeting-of-the-task-force-on-access-to- justice/docs.html participation/meetings-and-events/public-participation/public- participation/2012/fifth-meeting-of-the-task-force-on-access-to- justice/docs.html

EU law and the Aarhus Convention - Latest developments in the CJEU case-law DE reference C-72/12, - concept of procedural legality, substantive legality SK reference - Krizan case C-416/10 (injunctive relief – ex officio question), UK reference - C-260/11 – Edwards – costs – Hearing held in September – AG Kokott opinion expected on 18th October – limits to margin of discretion to implement by MS – if all instances of appeal are covered by procedural guarantees – criteria C-530/11, action against UK on prohibitively costly procedures (2 cases);

Other possibilities – a possible complaint mechanism in environmnetal matters (1)  A possible EU instrument  on complaints and investigations mechanism at MS level  all complaints would be directed to a national body to handle them  the Commission would overview the work of this body in the light of regular reports to be sent to the Commission.

Other possibilities – mediation (1) Mediation procedures” shall mean any process, however named or referred to, where two or more parties to a dispute are assisted by a third party to reach an amicable agreement on the settlement of the dispute, and regardless of whether the process is initiated by the parties, suggested or ordered by a court or prescribed by the national law of a Member State.

Other possibilities - Mediation in Eu law – consumer perspective (2) Green Paper of the Commission ADR is a complementary tool Recommendations in 1998 and 2001 on Alternative Dispute Resolution - ADR – principles for commercial and civil areas Proposal for a Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters More info: lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52002DC0 196:EN:NOT

Other possibilities – environmental mediation (3)  national examples on road construction, airports, Natura 2000  main MSs using this in the environmental sector AT, FI, EE, PL, HU marginally  main pros and cons of this in ENV field – faster – less costly – more flexible – question on quality of the decision (also addressed b the economic implications study)

Other possibilities – environmental mediation (4) Binding instrument vs non-binding instrument See parallel example in the consumer field In the environmental field the national legislation on mediation is patchy Some examples exist, main framework in the majority of MS exist already there - Could perhaps be built upon Main pros: More cost-effective, timely, more flexible – studies ongoing – economic perspective and factual situation

Thank you for your attention