Implementation of Aarhus Convention Articles 9.3 and 9.4 in the EU: Access to Justice Study

1. EC Study on the Implementation of Articles 9.3 and 9.4 of the Aarhus Convention in the EU Presentation at the 5th meeting of the Task Force on Access to Justice in Geneva, 13 June 2012 Professor Jan Darpö Faculty of Law/ Uppsala Universitet

2. Article 9.3 of the AC Administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment…

3. EU’s declaration upon approval of the Aarhus Convention In particular, the EU 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 (…), 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.

4. COM(2003)624 final • Art. 2 Definitioner: Member of the public, qualified entities, administrative acts and omissions, environmental proceedings (EP: court or independent body) • Art. 3: Access to EP to challenge acts and omissions by private persons • Art. 4-5 Legal standing, recognition • Art. 6 Internal review, time limits • Art. 7 EP - No or insufficient decision

5. EU and Access to Justice Art. 47 in the Charter of Fundamental Rights of the European Union - Right to an effective remedy and to a fair trial Art. 19 Treaty on European Union (TEU) - Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law

6. Court of Justice of the EU • C-75/08 Mellor: The PA must give reason for NOT requiring an EIA • C-237/07 Janecek: Air quality and o A2J • C-263/09 DLV: NGO standing • C-115/09 Trianel: “Schütznormtheorie” (AC/CC/2008/31 Germany) • C-240/09 LZ: Although article 9.3 does not have direct effect, the MS have a union law obligation to implement it… • C-128-131/09 Boxus: Legislation, EIA and A2J

7. Countries in the Study Portugal Netherlands Poland Italy Hungary Belgium Germany United Kingdom Czech Republic Sweden France Spain Ireland Denmark Slovakia Cyprus

8. Different procedural system Adm court General court Adm appeal- body/tribunal Authority/ Permit body

9. The Questionnaire A. Environmental legislation, administration and courts B. Standing for the public concerned: general questions, individuals, groups, e-NGOs C. The effectiveness of the judicial review: procedural remedies, timeliness, ADR, etc D. Costs in the environmental procedure: Loser pays principle, court fees, costs for expert witnesses, legal aid and other methods of public and private funding

10. Examples 1. A permit decision concerning an industrial activity not covered by the IED… 2. Complaints concerning an on-going landfill 3. An infrastructural construction project close to an Natura 2000 area… 4. A clear cutting operation which threatens a protected nature reserve… 5. The authorities have failed to establish an sufficient air quality action plan for a municipality in breach of EU air quality norms… 6. An authority has issued building permits for a number of holiday homes with individual waste-water systems… 7. An authority makes a derogation allowing the killing of individuals of a species of wild bird protected under EU law…

11. Preliminary Conclusions on Standing • Some types of decisions made pursuant to certain “sector” legislation are not appealable by any member of the public (hunting, forestry, etc)… • NGO standing is confined to certain legislation and specific decisions… • The protective interest theory (Schutznormtheorie) exists in many countries… • Administrative omissions are impossible or difficult to challenge in the courts… • The centralization of certain environmental decisions or to decide whether to approve projects according to a “plan”…

12. “The wider the entrance, the smaller the room”… Systems with generous standing rules – such as “actio popularis” – tend to offer a more limited scope of judicial review, typically limited to legal (as opposed to factual) issues in a more or less restricted manner in a cassatory procedure. On the other hand, those systems with to more restrictive standing requirements more often offer a review on the merits of the case a reformatory procedure…

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