Commission's Note on Access to Justice in Environmental Matterss

Abstract

As the reader is well aware, both the European Union and its Member States are parties to the UNECE’s Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the “Aarhus Convention”). As is apparent from the title, the Convention builds on “three pillars”: access to information; participation in decision-making processes; and access to judicial and administrative proceedings. The “third pillar” of the Convention is contained in Article 9, which, in broad terms, is structured as follows: according to Article 9(1), any person whose request for environmental information has been refused shall have access to a review procedure in a court or tribunal. Article 9(2) stipulates that the public concerned shall enjoy the right of access to a similar procedure in order to challenge the substantive and procedural legality of any decision, act or omission subject to permit decisions on activities that may have a significant impact on the environment. In addition, Article 9(3) requires that members of the public have the right of access to administrative or judicial procedures in order to challenge acts and omissions by private persons and public authorities that contravene provisions of national law relating to the environment. There is also a general requirement in Article 9(4) for the environmental procedure to be effective, fair, equitable, timely and not prohibitively expensive. Article 9(2) of Aarhus has been implemented into EU law by various directives; most importantly directive 2003/35 on public participation (PPD), the EIA directive (2011/92) and the IPPC/IED directives (2008/1 and 2010/75). For decision-making by the institutions of the Union, implementation is done through Regulation 1367/2006. With respect to Article 9(3), the picture is more complex. On the approval of the Convention, the EU has made a declaration on competence stating that Member States are responsible for the performance of the obligations in accordance with Article 9(3) and will remain so unless and until the Union adopts provisions covering implementation. A proposal for a directive on access to justice was launched by the Commission in 2003, and deliberated on for more than a decade before finally being withdrawn in 2014 owing to resistance at Member State level. Since then, the efforts of the Commission have instead concentrated on developing guidance on access to justice. A draft was discussed in late 2016 and the end result came in April this year, namely the Commission Notice on Access to Justice in Environmental Matters. This article is mainly an introductory to the Notice. First, the main reasoning and conclusions drawn in the document will be described (2.1-2.8). Thereafter in section 3, I will make some comments on a couple of issues that I find worth highlighting. The aim is not to provide an extensive analysis or to discuss controversial standpoints, but rather to point to some of the questions that need to be discussed further. However, to begin with a few words are required on another aspect crucial to an understanding of the background to the Commission’s actions – that is, the dynamic development of case-law concerning access to justice in environmental matters at EU level.