EU and Aarhus

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EU and Aarhus

• Jurisdictional Cmpetition?

Prof. Jan H. Jans
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EU and Aarhus

• So called Mixed Treaty
• Binding on the EC and Member States
• Regulation 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
• Directive 2003/35/EC providing for public
  participation in respect of the drawing up of
  certain plans and programmes relating to the
  environment

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Three Perspectives

• Acccess to justice in internal EU affairs
• The implementation of Aarhus principles in the
  Member States via EC law
• The possible direct effect of the Aarhus
  Convention in the EU Members States

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Acccess to Justice in Internal EU Affairs

• Greenpeace is still alive
• Root of the problem direct and individual
  concerned (Art. 230 EC)
• Greenpeace case
• Paraquat case T-94/04
• Sahlstedt case C-362/06P
• Slight improvement after Lisbon? and against a
  regulatory act which is of direct concern to them
  and does not entail implementing measures
• Baron von Munchausen does not exist
• Internal review and access to justice according
  to Regulation 1367/2006?
• Paraquat case once again and recently C-355/08 P.

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Implementation of Aarhus in the Member States via
EC Law

• Via Directive 2003/35
• Article 1 The objective of this Directive is to
  contribute to the implementation of the
  obligations arising under the Aarhus Convention
• IPPC and EIA Directives have to be interpreted
  Aarhus-proof/conform
• Jurisdictional competition between the ECJ and
  the Aarhus Compliance Committee

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Some Problematic Cases

• Irish cases on costs
• planning fee C-216/05
• C-427/07 only the costs arising from
  participation, loser pays is allowed, but no
  discretionary practices from the courts
• Participation for the public (concerned)?
• Sufficient or substantial interests? Case
  C-427/07
• Numeric criteria for NGOs?
• Swedish DLV case C-238/08
• Legality Review and healing Dutch Crisis and
  Recovery Act
• Protective Rule requirements
• German case C-115/09, pending
• New Dutch legislation
• Duty to give reasons Mellor case C-75/08
• Access to Justice for Art. 1(5) EIA projects?
  Belgian case C-177/09

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Possible Direct Effect of Aarhus

• Questions asked by Slovakian court in C-240/09
• Is the ruling in C-213/03 Pêcheurs de létang de
  Berre applicable by analogy?
• Problem The European Community 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 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.

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Direct Effect of Directive 2003/35?

• Covers IPPC and EIA only
• But not, for instance, nature conservation
• Voluntary spill over effects?
• Kraaijeveld Waddenzee doctrine
• Direct effect possible in judicial review of
  Member State discretion exercised under Directive
  2003/35
• Examples costs, numeric criteria, protective
  rule requirement, etc.
• In C-427/07 the obligation to make available to
  the public practical information on access to
  administrative and judicial review procedures
  amounts to an obligation to obtain a precise
  result

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Thank you for your attention