The direct effect of the Aarhus Convention as seen by the French ‘Conseil d’Etat’

Abstract

France ratified the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters on the 8th July 2002 and the Convention came into force on the 6th October 2002. Seen as an instrument of ‘environmental democracy’, the impact of the Convention in France has been relative. On the one hand, the Convention did not imply many legislative changes. The 2002 law relating to the ‘proximity democracy’ has provided the main legislative change due to the Convention through an improvement of the ‘public debate’ procedure. On the other hand, the judge has had an important role to play. Citizens and non-governmental organisations saw the Convention as an opportunity to improve their rights and invoked the Convention before the courts. It gave the judge the opportunity to interpret the Convention and fix its legal impact in French law. The judge limited direct effects of the Aarhus Convention to a few stipulations and “choose a soft interpretation of this treaty’s requirements”. This study focuses on the case law of the French administrative highest jurisdiction, the ‘Conseil d’Etat’. The ‘Cour de cassation’, never had to pronounce on any of the Aarhus Convention provisions. It is first of all necessary to understand how the ‘Conseil d’Etat’ assesses the direct effect of the treaties before analysing how the ‘Conseil d’Etat’ applies it to the Aarhus Convention.