1. 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)

2. 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

3. 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

4. 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

5. «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)

6. 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

7. «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

8. 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

9. 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

10. 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»

11. 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.

12. 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.

13. 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.

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