The most important aspects of the third pillar of the Aarhus Convention are covered in the Directives on environmental information and on public participation; this means that the main provisions about access to justice are implemented at EU and national level.
A further clause in the Convention, Art. 9 Para. 3, provides for some kind of revision procedure in the case of infringements of national environmental law. However, the wording of the Convention leaves this rather vague and gives the signatory states a good deal of leeway in interpreting it (e.g. who should be entitled to contest what under which conditions).
The issue of access to courts of law affects not only national law but also the EU institutions (Council of Ministers, Commission and Parliament).
The Aarhus Regulation
On 2 May 2006 the Council of Ministers and the EU Parliament reached agreement, in the Mediation Committee, on a proposal for a Regulation covering the application of the Aarhus provisions to the EU institutions. In September 2006 the Regulation was published in the Official Journal of the EU; however, its provisions come into force only at the end of June 2007.
The European Commission decided on the Rules for Application of the Aarhus Regulation in December 2007.
This documents describes in detail, how the request needs to be made to be successful.
As contracting parties, both EU member states and the EU institutions are required to comply with the provisions of the Aarhus Convention. The Commission has therefore presented a suitable Regulation aimed at the EU institutions, providing for
- access to environmental information,
- public participation in decision procedures relevant to the environment and
- access to justice in environmental matters
to be applied to the EU organs and institutions.
For the implementation of the Aarhus Regulation the EU Commission published A Practical Guide - Access to information, public participation and access to justice in environmental matters at Community level.
The crucial issues to be resolved in the Mediation Committee were: what regime should apply as regards access to environmental information, and what reasons can justify refusal to provide such information? In contrast to the EU Parliament (EP), which was originally in favour of the provisions of Directive 2003/4/EG on environmental information, the Council envisaged applying Regulation 1049/2001 on transparency. The result as regards access to environmental information is that the exceptions laid down in the Regulation on transparency must be interpreted narrowly, while the decision whether to provide information must take into account that the public interest is involved in the case of data about emissions. This accommodates the EU Parliament’s wish that access to environmental information should not be severely restricted. Exceptions apply in the case of information which the Commission seeks to obtain during the investigation of possible Treaty infringements; such information need not be provided.
Key aspects of the Regulation:
- The general public is entitled to access to environmental information available from the EU’s organs and institutions.
- The EU’s organs and institutions must take the outcome of public participation in procedures concerning plans, programmes and policies relating to the environment into account, and must publish such outcome.
- Databases or registers should contain information about the measures taken during the investigation of possible Treaty infringements.
- The EU’s organs and institutions must interpret the possible reasons for refusing access to information narrowly; here the public interest in release, and a possible tie-up between the information applied for and emissions, must be taken into account.
- A petition for revision / access to courts of law at the EU level with respect to acts and omissions of the EU’s organs and institutions can be lodged in line with the conditions laid down in the Regulation.
- The Regulation applies from 28 June 2007.
Proposal for Directive on access to justice
At the end of October 2003 the Commission presented its long-awaited proposal for a Directive on access to justice in environmental matters. The proposal has two main aims:
1. Implementing the relevant provision of the
Convention by means of minimum standards
applying throughout the EU
2. Reinforcing the enforcement of environmental
law in the EU – particularly with respect to its
enlargement.
Again, the proposal envisages a special rôle for conservation organizations. Provided that these satisfy certain criteria, they should be entitled to initiate revision procedures before courts of law (or independent, impartial bodies) if environmental regulations are infringed.
To date no EU Presidency has launched negotiations on this proposal for a Directive, the reason being that no majority in its favour is in sight. Most of the EU member states take the view that the Directive is not a precondition for the EU’s ratifying the Aarhus Convention – which has in any case taken place in the meantime.
In 2003 the >> REC = Regional Environmental Center for Central and Eastern Europe (Szentendre, Hungary) issued a manual on the requirements for and obstacles to enforcing environmental law. The >> Manual on the third pillar of the Aarhus Convention includes a number of case histories (one of them from Austria).
EU Conference 2008: The Aarhus Convention: How are its access to justice provisions being implemented?
The EC organised this Conference in Juni 2008 to analyse the current status of implementation of articel 9(3), (4) und (5) of the Aahus Convention in the EU. Also the further steps to speed up the implementation of the 3rd pillar of the Aarhus Convention in the EU were discussed.
All presentations and the results of the conference can be found in the box in the right.
