Transcript EC Study on the Implementation of Articles 9.3 and 9.4 of the Aarhus Convention in the EU Presentation at the 5th meeting of.

EC Study on the Implementation of
Articles 9.3 and 9.4 of the Aarhus
Convention in the EU
Presentation at the 5th meeting of the
Task Force on Access to Justice in
Geneva, 13 June 2012
Professor Jan Darpö
Faculty of Law/
Uppsala Universitet
Article 9.3 of the AC
Administrative or judicial procedures
to challenge acts and omissions by
private persons and public authorities
which contravene provisions of its
national law relating to the
environment…
Jan Darpö 2012-06-13
Faculty of Law/UU |
www.jur.uu.se / www.jandarpo.se
EU’s declaration upon approval of
the Aarhus Convention
In particular, the EU also 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 omissions by private persons and public authorities
other (…), 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.
Jan Darpö 2012-06-13
Faculty of Law/UU |
www.jur.uu.se / www.jandarpo.se
COM(2003)624 final

Art. 2 Definitioner: Member of the public,
qualified entities, administrative acts and
omissions, environmental proceedings
(EP: court or independent body)

Art. 3: Access to EP to challenge acts
and omissions by private persons

Art. 4-5 Legal standing, recognition

Art. 6 Internal review, time limits

Art. 7 EP - No or insufficient decision
Jan Darpö 2012-06-13
Faculty of Law/UU |
www.jur.uu.se / www.jandarpo.se
EU and Access to Justice
Art. 47 in the Charter of Fundamental
Rights of the European Union
- Right to an effective remedy and to a fair
trial
Art. 19 Treaty on European Union (TEU)
- Member States shall provide remedies
sufficient to ensure effective legal protection
in the fields covered by Union law
Jan Darpö 2012-06-13
Faculty of Law/UU |
www.jur.uu.se / www.jandarpo.se
Court of Justice of the EU

C-75/08 Mellor: The PA must give reason for
NOT requiring an EIA

C-237/07 Janecek: Air quality and o A2J

C-263/09 DLV: NGO standing

C-115/09 Trianel: “Schütznormtheorie”
(AC/CC/2008/31 Germany)

C-240/09 LZ: Although article 9.3 does not
have direct effect, the MS have a union law
obligation to implement it…

C-128-131/09 Boxus: Legislation, EIA and A2J
Jan Darpö 2012-06-13
Faculty of Law/UU |
www.jur.uu.se / www.jandarpo.se
Countries in the Study
Portugal
Poland
Hungary
Germany
Czech Republic
France
Ireland
Slovakia
Jan Darpö 2012-06-13
Faculty of Law/UU |
Netherlands
Italy
Belgium
United Kingdom
Sweden
Spain
Denmark
Cyprus
www.jur.uu.se / www.jandarpo.se
Different procedural system
Adm
court
General
court
Adm appealbody/tribunal
Authority/
Permit body
Jan Darpö 2012-06-13
Faculty of Law/UU |
www.jur.uu.se / www.jandarpo.se
The Questionnaire
A. Environmental legislation, administration
and courts
B. Standing for the public concerned: general
questions, individuals, groups, e-NGOs
C. The effectiveness of the judicial review:
procedural remedies, timeliness, ADR, etc
D. Costs in the environmental procedure:
Loser pays principle, court fees, costs for
expert witnesses, legal aid and other methods
of public and private funding
Jan Darpö 2012-06-13
Faculty of Law/UU |
www.jur.uu.se / www.jandarpo.se
Examples
1. A permit decision concerning an industrial activity not covered
by the IED…
2. Complaints concerning an on-going landfill
3. An infrastructural construction project close to an Natura 2000
area…
4. A clear cutting operation which threatens a protected nature
reserve…
5. The authorities have failed to establish an sufficient air quality
action plan for a municipality in breach of EU air quality
norms…
6. An authority has issued building permits for a number of
holiday homes with individual waste-water systems…
7. An authority makes a derogation allowing the killing of
individuals of a species of wild bird protected under EU law…
Jan Darpö 2012-06-13
Faculty of Law/UU |
www.jur.uu.se / www.jandarpo.se
Preliminary Conclusions on
Standing

Some types of decisions made pursuant to certain
“sector” legislation are not appealable by any
member of the public (hunting, forestry, etc)…

NGO standing is confined to certain legislation and
specific decisions…

The protective interest theory (Schutznormtheorie)
exists in many countries…

Administrative omissions are impossible or difficult
to challenge in the courts…

The centralization of certain environmental
decisions or to decide whether to approve projects
according to a “plan”…
Jan Darpö 2012-06-13
Faculty of Law/UU |
www.jur.uu.se / www.jandarpo.se
“The wider the entrance,
the smaller the room”…
Systems with generous standing rules – such
as “actio popularis” – tend to offer a more
limited scope of judicial review, typically
limited to legal (as opposed to factual) issues in
a more or less restricted manner in a
cassatory procedure. On the other hand,
those systems with to more restrictive
standing requirements more often offer a
review on the merits of the case a
reformatory procedure…
Jan Darpö 2012-06-13
Faculty of Law/UU |
www.jur.uu.se / www.jandarpo.se
….and finally…
THANK YOU FOR LISTENING..!

[email protected]
www.jandarpo.se/ In English
Jan Darpö 2012-06-13
Faculty of Law/UU |
www.jur.uu.se / www.jandarpo.se