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Aarhus, EU and Access to Justice in Environmental Decision-making

This presentation discusses the implementation of Article 9(2) and Article 9(3) of the Aarhus Convention in EU law, focusing on substantive and procedural legality of decisions, acts, omissions, and remedies. It also explores relevant case law and discrepancies, such as the interpretation of "rights" and the differences in lists of activities. The presentation highlights the importance of effective judicial protection for ENGOs and the need for clarity and unconditional obligations in national and EU law.

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Aarhus, EU and Access to Justice in Environmental Decision-making

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  1. Aarhus, EU and Access to Justice in Environmental Decision-making Presentation at the conference Environmental Rights in Europe and Beyond LUND, 21-22 April 2016 Professor Jan Darpö Faculty of Law/ Uppsala Universitet

  2. Interests and “Rights” in Nature Conservation & Species Protection

  3. A2J according to Aarhus • Article 9(2):Substantive and procedural legality of any decision, act, omission… Article 6(1)a – listed activities (Annex I) Article 6(1)b – Significant Impact on the Environment • Article 9(3): Acts and omissions in breach of environmental law, administrative or judicial procedures… • Article 9(4): Adequate and effective reme-dies…injunctive relief…fair, equitable, timely and not prohibitively expensive…

  4. Compliance Mechanism Article 15 and Decision I/7 (2004); Review of Compliance • Compliance Committee (CC); independent and impartial experts nominated by the Parties and Public • The Public Trigger, open sessions • Recommendations (“decisions”) • Report to MoP; advice & recommendations, ask for strategy, declaration of non-compliance, cautions, suspension…

  5. PP & A2J in EU law Article 9(2) Directive 2003/35/EC: EIA-directive (2011/92), IED (2010/75)… also in other directives, such as SEA (2001/42), WFD (2000/60), ELD (2004/35)…

  6. PP & A2J in EU law Article 9(3) EUs declaration on approval: In particular, the European Community also declares that the legal instruments in force (…) do not cover fully the implementation of the obligations resulting from Article 9 (3) of the Convention as they relate to administrative and judicial procedures to challenge acts and omissions by private persons and public authorities other than the institutions of the European Community as covered by Article 2 (2)(d) of the Convention, and that, consequently, its Member States are responsible for the performance of these obligations at the time of approval of the Convention by the European Community and will remain so unless and until the Community, in the exercise of its powers under the EC Treaty, adopts provisions of Community law covering the implementation of those obligations.

  7. A substantial body of case law • C-237/07 Janecek (2008): Air quality and A2J… • C-75/08 Mellor (2009): Authorities must give reason. • C-263/09 DLV (2010): ENGO standing… • C-115/09 Trianel (2011); ”Schütznormtheorie”… • C-240/09 Slovak Brown Bear (2011): Art. 9.3 and EU… • C-128/09 Boxus, C-182/10 Solvay (2011): EIA and “specific legislative acts”… • C-260/11 Edwards (2013): Costs in the UK… • C-72/12 Altrip (2013): Procedural defects in EIA and A2J… • C-416/10 Križan (2013): Effective remedies… • C-404/13 ClientEarth (2014): Air quality and A2J…

  8. C-115/09 Trianel (2011) It follows more generally that the last sentence of the third paragraph of Article 10a of Directive 85/337 must be read as meaning that the ‘rights capable of being impaired’ which the ENGO are supposed to enjoy must necessarily include the rules of national law implementing EU environment law and the rules of EU environment law having direct effect. C-115/09 Trianel [2011], para. 48

  9. C-240/09 Slovak Brown Bear (2011) It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by EU law, in order to enablean ENGO, such as the LZ, to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law. C-240/09 Trianel [2011], para. 50

  10. Question marks & Discrepancies • Differences in the lists, “self-executing effect”, cf the wolverine and the Bern Convention… • Any other activity that may have Significant Effect on the Environment (the Habitats Directive) • …”in accordance with its national law”, national criteria…? • Substantive and procedural legality..? • Articles 9(3) and 9(4) and Administrative Appeal..?

  11. HFD on the appeals ban… • Art 12 Habitats Directive is unconditional and precise, case-law under Art 288 = “rights”… • Legal principles of Union law includes legal protection in court; Art 4(3) & Art 19(1) 2nd para TEU, Art 47 European Charter… • C-240/09; P of equivalence, P of effectiveness (48), to the fullest extent possible (C‑432/05 Unibet), but here NOT…

  12. HFD about the P of legal protection • P of “useful effect” (effet utile”) means that a court must have the possibility to check whether a national authority has acted accor-ding to clear and unconditional obligations according to a directive and – if not – can disapply conflicting national rules (C-127/02 p 66, C-263/08 p 45)… • Thus have ENGOs “rights” according to the Habitats Directive, which must enjoy judicial protection… • …in a court according to Article 267.

  13. To be discussed… • MS and the Commission… • The role of the MS’ courts… • Court or tribunal and Article 267 TFEU… • Dual system for A2J; national and EU law..? • Environmental “rights”…

  14. To be discussed… • … or obligations to pursue a particular course of conduct…?

  15. ….and finally… THANK YOU FOR LISTENING..!    jan.darpo@jur.uu.se www.jandarpo.se/ In English

  16. Rights and interests… Article 47 of the EU Charter… Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in complian-ce with the conditions laid down in this Article. Article 19 Treaty of the EU (TEU) Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.

  17. C‑432/05 Unibet (2007) In that regard, the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)… C‑432/05 Unibet [2007], para. 43

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