Access to Justice in Environmental Matters in the EU: The EU’s Difficult Road towards Non-compliance with the Aarhus Convention

AbstractBefore the Lisbon Treaty, environmental non - governmental organisations could rarely or not satisfy the admissibility test to gain access to the European courts. This contribution examines whether the rules on locus standi under the Lisbon Treaty will facilitate their access to justice. Attention will be given to what is understood by a 'regulatory act', the EU obligations under the Aarhus Convention and whether the new perspectives within the Lisbon Treaty will allow environmental non - governmental organisations to challenge TAC Regulations.

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A first success in the long run for better access to justice in the EU: The scope of the administrative review procedure provided under Regulation 1367/2006 invalidated by the General Court

elni Review ◽

10.46850/elni.2012.105 ◽

2012 ◽

pp. 92-96

Author(s):

Anaïs Berthier

Keyword(s):

Ambient Air ◽

Added Value ◽

Access To Justice ◽

Eu Law ◽

European Union Law ◽

Maximum Residue Level ◽

Aarhus Convention ◽

Review Procedure ◽

Administrative Review ◽

The Eu

The EU General Court adopted two long awaited decisions on 14 June 2012 in cases T-338/08 and T-396/09 in which it interprets for the first time Regulation 1367/2006 (the Aarhus Regulation) that applies the Aarhus Convention to EU institutions and bodies. The General Court also departs from the caselaw of the Court on the possibility for the Courts to examine the validity of an act of European Union law in the light of an international treaty. The author of this article supports this ruling and provides arguments that advocate a broadening of the control of legality of EU law. In both decisions, the General Court held that the regulation was not compatible with the Convention with regard to the types of acts that could be challenged through the administrative procedure provided by the Aarhus Regulation. Art. 10 of Regulation 1367/2006 allows NGOs to challenge decisions of EU institutions which constitute 'administrative acts'. In case T-338/08, the Non-Governmental Organisation (NGO) applicants made a request to the Commission to review Regulation 149/2008 setting maximum residue level for certain products. In case T-396/09, NGOs asked the Commission to review the decision granting the Kingdom of the Netherlands a temporary exemption from the obligations laid down by Directive 2008/50/EC on ambient air quality and cleaner air for Europe. In both cases, the Commission considered the requests inadmissible claiming that the concerned acts were not 'administrative acts' as defined in Art. 2(1)(g) of Regulation 1367/2006 because they were not of 'individual scope'. The Court annulled both decisions. It therefore broadened the interpretation of the right access to justice for NGOs in environmental matters. A great move forward one might hope, but the Commission has appealed against both judgments. In this article, it is examined what real added value these decisions have with regards to access to justice. The author demonstrates that even though these decisions allow a broader category of acts, including those adopted through comitology, to be challenged under the administrative review procedure provided by the Aarhus Regulation, the decisions still do not ensure compliance of EU law with the Aarhus Convention. In this regard, the author sees that the appeal of the Commission focuses on the relationship between international law and EU law and the role of the latter as a 'benchmark' and legal basis to invalidate acts of secondary law.

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Public participation in decisions on specific activities in environmental matters in Croatia

elni Review ◽

10.46850/elni.2012.003 ◽

2012 ◽

pp. 13-19

Author(s):

Lana Ofak

Keyword(s):

Public Participation ◽

Positive Outcome ◽

Legal Framework ◽

Access To Justice ◽

The European Union ◽

Eu Member States ◽

Aarhus Convention ◽

Specific Activities ◽

The Right ◽

The Eu

Croatia finished accession negotiations with the EU in June 2011. The Accession Treaty was signed on 9 December 2011. The EU accession referendum in Croatia was held in January 2012 with a positive outcome. 66.27% of Croatian citizens voted in favour of Croatian accession to the European Union and 33.13% of votes were against the accession. Following ratification of the Accession Treaty by the 27 EU member states, accession of Croatia to the EU is expected to take place on 1 July 2013. In the 2011 Progress Report, European Commission stated that there has been progress in the area of environment. Overall, Croatia’s environmentorientated preparations are nearing completion in terms of both alignment and implementation of the relevant legislation. However, implementation of the horizontal acquis, and in particular effective public participation and access to justice in environmental matters, need to be improved. The purpose of this article is twofold. Firstly, it provides a general overview of the legal framework for public participation in decisions on specific activities in Croatia, which is intended to implement provisions of Art. 6 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (hereinafter: the Aarhus Convention or Convention). Implementation of Art. 7 and 8 of the Aarhus Convention are not discussed. Secondly, specific problems in exercising the right to participate in environmental impact assessment procedures in Croatia are analysed. It is shown that there are cases of non-compliance with the provisions of Art. 6 of the Aarhus Convention.

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Direct Public Access to EU Courts: Upholding Public International Law via the Aarhus Convention Compliance Committee

Nordic Journal of International Law ◽

10.1163/157181012x638070 ◽

2012 ◽

Vol 81 (2) ◽

pp. 175-204 ◽

Cited By ~ 2

Author(s):

Simon Marsden

Keyword(s):

International Law ◽

Public Access ◽

State Courts ◽

Direct Access ◽

Access To Justice ◽

The European Union ◽

Public International Law ◽

Aarhus Convention ◽

The Relationship ◽

The Eu

This article examines the opportunities for individuals and non-governmental organisations (NGOs) to obtain access to justice in the European Union (EU) via international law. In the context of the first part of a concluded case before the Aarhus Convention Compliance Committee (ACCC), it reviews the EU rules that restrict standing and examines whether the preliminary reference procedure from Member State courts provides an effective alternative to direct access to EU courts. Based on the general findings and recommendations, and analysis of the relationship between international and EU law, it is argued that there remains a need for greater EU compliance with the Convention, with the implication that EU primary as well as secondary law may need to be reformed if public international law obligations are to be fully met.

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Access to justice in State aid: how recent legal developments are opening ways to challenge Commission State aid decisions that may breach EU environmental law

ERA Forum ◽

10.1007/s12027-021-00665-7 ◽

2021 ◽

Author(s):

Juliette Delarue ◽

Sebastian D. Bechtel

Keyword(s):

Environmental Law ◽

Current System ◽

Internal Market ◽

State Aid ◽

Access To Justice ◽

Court Of Justice ◽

Aarhus Convention ◽

The Eu

AbstractAccess to justice in State aid matters is very limited. In particular, the admissibility test before the Court of Justice of the EU excludes private parties who are not market operators. The recent CJEU ruling in the Hinkley Point C case and the findings of the Aarhus Convention Compliance Committee call into question the adequacy of the current system. The findings demand an opening for non-market actors, including non-governmental organisations, to allege breaches of EU environmental law by the beneficiary of a State aid measure and consequently, the incompatibility of the aid measure with the internal market.

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The ECJ Rules Environmental NGOs Must Have Access to Justice in Water Law Procedures

elni Review ◽

10.46850/elni.2018.002 ◽

2018 ◽

pp. 7-10

Author(s):

Summer Kern ◽

Gregor Schamschula

Keyword(s):

Case Law ◽

Water Law ◽

Access To Justice ◽

United Nations Economic Commission ◽

Member States ◽

International Treaty ◽

Economic Commission ◽

Aarhus Convention ◽

Environment And Development ◽

The Eu

The Aarhus Convention was adopted in 1998 within the United Nations Economic Commission for Europe, following Principle 10 of the Rio Declaration on Environment and Development. This principle states that “[e]nvironmental issues are best handled with the participation of all concerned citizens [...]”. The Convention is an international treaty with three pillars, namely (1) Access to Information; (2) Public Participation; and (3) Access to Justice. As the Implementation Guide makes clear: “The three pillars depend on each other for full implementation of the Convention’s objectives.” The Convention has as of the date of this publication 47 Parties. Austria ratified the treaty in early 2005, as did the EU. As made clear by the EU’s declaration upon ratification, implementation of the Aarhus Convention partly falls within the competence of the EU and partly within the competence of the Member States. With regards to Art. 9(3) in particular, the EU declared upon approval of the Convention that “the legal instruments in force do not cover fully the implementation of the obligations.” Yet the EU has recognized the drawbacks of this lack of implementation at the EU level repeatedly, and most recently issued a Notice on Access to Justice for the Member States so as to achieve better implementation and consistency within the Member States. This article assesses the current developments of implementation with regard to Access on Justice in Austrian Water Law. The ruling in question can certainly be seen as milestone in environmental case law.

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Access to documents: Interaction and gaps in the REACH and Aarhus Convention systems

elni Review ◽

10.46850/elni.2011.003 ◽

2011 ◽

pp. 15-20

Author(s):

Vito Buonsante

Keyword(s):

Decision Making ◽

Public Participation ◽

European Parliament ◽

Official Journal ◽

Access To Justice ◽

Access To Information ◽

Community Institutions ◽

Aarhus Convention ◽

Access To Documents ◽

The Eu

Regulation (EC) 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) was published in the Official Journal on 30 December 2006 and came into force on 1 June 2007. Regulation (EC) 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community Institutions and Bodies entered into force on 28 September 2006 and became applicable on 28 June 2007. This article discusses the gaps in REACH in relation to the Aarhus Regulation, and the obligations for ECHA that derive from the application of REACH and from the fact that the EU is a party to the Aarhus Convention. The article also carries out a partial assessment of the work conducted by ECHA on access to and dissemination of environmental information.

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The Aarhus Convention in operation: EEB Survey Initial Results

elni Review ◽

10.46850/elni.2007.008 ◽

2007 ◽

pp. 2-4

Author(s):

Ralph Hallo

Keyword(s):

Public Participation ◽

Access To Justice ◽

Initial Experience ◽

Access To Information ◽

The European Union ◽

The Public ◽

Eu Member States ◽

Aarhus Convention ◽

Initial Results ◽

The Eu

The Aarhus Convention is generally recognised as the most important international legal instrument in the field of environmental rights. All 27 EU Member States (with the exception of Slovakia) and the European Union have signed the Convention and all of these signatories (except Ireland) have now ratified the Convention. The Convention is generally described as having three pillars: access to information, public participation and access to justice. The EU prepared for ratification by adopting two directives and proposing a third, one for each of the three pillars (collectively, ‘the EU’s Aarhus Convention directives’). The EEB (the European Environmental Bureau) has been actively involved, over many years, in efforts to develop and use the Aarhus Convention. Two years after the deadline for transposition of the Information Directive and a year and a half after the deadline for transposition of the Public Participation Directive, the EEB determined that the time was right to launch an investigation into the initial experience with the implementation and use of the two directives. The EEB also wished to examine experiences with access to justice and the need for the currently stalled proposal.

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The Aarhus Convention and Polish Regulations Concerning Parties to Proceedings for Issuing the eia Decisions

Journal for European Environmental & Planning Law ◽

10.1163/18760104-18010005 ◽

2021 ◽

Vol 18 (1-2) ◽

pp. 56-76

Author(s):

Magdalena Michalak ◽

Przemysław Kledzik

Keyword(s):

Environmental Law ◽

Legal Order ◽

Access To Justice ◽

United Nations Economic Commission ◽

The Public ◽

Law And Policy ◽

Economic Commission ◽

Aarhus Convention ◽

Key Issues ◽

Environmental Law And Policy

Abstract The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted on 25 June 1998 in the Danish city of Aarhus. According to its provisions each state Part shall, within the framework of the national legal order, ensure that members of the public concerned have access to a review procedure before a court of law or another independent and impartial body established by law. At the same time, it contains regulations specifying the criteria that constitute the basis for determining persons enjoying rights to access justice with respect to national legal orders. Poland, being one of the state Parties, introduced into national legal order special provisions enabling implementation of the Aarhus Convention, including regulations concerning parties to proceedings in environmental matters. The aim of the study is to analyse and assess these regulations in the light of the requirements adopted in the Aarhus Convention and to formulate general conclusions in the field of key issues of the international and European environmental law and policy.

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The Escazú Agreement and the Regional Approach to Rio Principle 10: Process, Innovation, and Shortcomings

Journal of Environmental Law ◽

10.1093/jel/eqz027 ◽

2019 ◽

Vol 31 (3) ◽

pp. 533-545

Author(s):

Stephen Stec ◽

Jerzy Jendrośka

Keyword(s):

Latin American ◽

Burden Of Proof ◽

Regional Level ◽

Caribbean Region ◽

Access To Justice ◽

Access To Information ◽

Regional Approach ◽

Aarhus Convention ◽

Specific Activities ◽

Latin American And Caribbean

Abstract The adoption in 2018 of the Escazú Agreement by the countries of the Latin American and Caribbean region marks the second regional legal instrument aimed at the implementation of Principle 10 of the 1992 Rio Declaration, joining the Aarhus Convention of the pan-European region. The international community has settled upon the regional level as the appropriate means for implementing standards related to access to information, public participation, and access to justice in environmental matters. The appropriateness of the regional level is demonstrated by the differences and innovations found in the Escazú Agreement, in its scope and definitions, background principles, burden of proof and protections of environmental defenders and vulnerable populations. Yet, the regional approach also entails risks, as demonstrated by the limitation of the scope of rights for nationals of the country where specific activities are planned or occurring.

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