Compliance Procedure: Aarhus Convention
- Access to information — Access to justice — International environmental law — International courts and tribunals, procedure — Compliance with international decisions
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
A. Establishment and Context
1 The Aarhus Convention Compliance Procedure (‘ACCP’ or ‘Procedure’) finds its origin in Article 15 of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘Aarhus Convention’ or ‘Convention’) (1998). Article 15 provides the following:
The Meeting of the Parties shall establish, on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention. These arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention.
2 The Procedure and the Aarhus Convention Compliance Committee (‘ACCC’ or ‘Committee’) were established by Decision I/7 (2002) Review of Compliance (‘Dec I/7’) of the first Meeting of the Parties (‘MOP’), with the Annex to Dec I/7 setting out the details of the Procedure and the role of the ACCC.
3 The ACCC is a quasi-judicial body that reports and submits recommendations to the MOP on compliance issues that may arise under the Convention (Dec I/7, Annex, para 35). Such issues concern the three procedural rights that are the backbone of the Convention: access to information; public participation in decision-making; and access to justice. The competence of the ACCC to consider allegations of non-compliance from members of the public—so-called communications—distinguishes the ACCP from other compliance procedures under multilateral environmental agreements (‘MEAs’). The ACCC first met in 2003 and issued its first findings in 2004.
4 The origin of the Aarhus Convention can be traced to Principle 10 of the 1992 Rio Declaration on Environment and Development (Stockholm Declaration (1972) and Rio Declaration (1992)). The Convention was adopted within the framework of and is administrated by the United Nations Economic Commission for Europe (‘UNECE’). The UNECE is one of the international organizations through which Eastern and Western European states continued to cooperate during the ‘Cold War’, including on environmental matters. The political changes in Europe during the late 1980s/early 1990s significantly facilitated the adoption of the Convention. The 21st paragraph of its preamble provides: ‘[c]onvinced that the implementation of this Convention will contribute to strengthening democracy in the region of the United Nations Economic Commission for Europe’.
5 In 2003, the Protocol on Pollutant Release and Transfer Registers (‘PRTR Protocol’) to the Convention was adopted. It has its own compliance procedure, which is structured in the same manner as the ACCP, but had by the beginning of 2018 not received allegations of non-compliance.
6 The Convention and the PRTR Protocol are open to all members of the United Nations. States from outside the UNECE region require the approval of the MOP prior to becoming a party to the Convention, while no such approval is required for becoming a party to the PRTR Protocol (Art 19 (3) Aarhus Convention; Arts 24 and 26 PRTR Protocol). Parties to both instruments include the European Union (‘EU’) and states from the UNECE region.
B. The Aarhus Convention Compliance Committee
7 Since 2005, the ACCC has had nine members. Members of the ACCC do not represent the states of which they are a national and serve in their personal capacity (Dec I/7, Annex, para 1). No two members of the ACCC may have the same nationality (Dec I/7, Annex, para 3) and geographical distribution shall be taken into account in their election (Dec. I/7, Annex, para 8). Nominations for candidate members of the ACCC may be made by signatories and parties to the Convention as well as non-governmental organizations (‘NGOs’) (Dec I/7, Annex, para 4) and members are elected by the MOP (Dec I/7, Annex, para 7). The term of office of an ACCC member runs from an ordinary meeting of the MOP to the second ordinary meeting of the MOP thereafter, and members may be re-elected once for a second term of office (Dec I/7, Annex, para 9). Since the MOP meets every three years, this has meant that a term of office of an ACCC member consists of six years. Committee members are reimbursed for expenses, but they do not receive payment for their services.
8 The ACCC may receive submissions from a party concerning another party’s compliance or its own compliance, referrals from the secretariat, and communications from the public regarding a party’s compliance (Dec I/7, Annex, paras 13 (a) and 15–24). In practice, the ACCC has devoted most of its work to the consideration of communications, having by the beginning of 2018 received over 150 communications, two submissions concerning another party’s compliance and no referrals. In addition to considering allegations of non-compliance, the ACCC also reviews compliance more generally (Dec I/7, Annex, paras 13 (b)–(c) and 14), including, at the request of the MOP, by monitoring the implementation of recommendations adopted by the MOP.
C. The Aarhus Convention Compliance Procedure
9 The rest of this contribution focusses on the procedure applicable to communications from the public, given that by far most of the work of the ACCC concerns these. Furthermore, as mentioned above, the competence of the ACCC to receive communications from the public is what distinguishes the ACCP from other compliance procedures under MEAs (for full overview see Ebbesson and others, 2014).
10 Communications may be brought to the ACCC starting twelve months after the adoption of Dec I/7 or twelve months after the entry into force of the Convention for a party, unless a party declares that it is unable to accept communications for a maximum period of four years (Dec I/7, Annex, para 18). No such declarations have been submitted to date.
11 Communications may be submitted by ‘one or more members of the public’ concerning a party’s compliance with the Convention (Dec I/7, Annex, para 18). The Convention defines ‘the public’ as ‘one or more natural or legal persons, and in accordance with national legislation or practice, their associations, organizations or groups’ (Art 2 (4) ). Depending on the potential effects of a planned activity, this definition may include natural and legal persons, such as NGOs, located in a party other than the party whose compliance is at stake. For example, ACCC/C/2012/71 (Czechia) involved a communicant living in Germany and a nuclear power plant located in the Czech Republic, and ACCC/C/2013/91 (United Kingdom) involved the same communicant and a nuclear plant located in the United Kingdom. The ACCC has also found that ‘the public’ includes bodies that represent the interests of the community in planning matters, have statutory duties, but no regulatory decision-making functions, and whose members provide their services on a voluntary basis, such as Community Councils in Scotland (eg ACCC/C/2012/68 (European Union and United Kingdom), paras 81–83).
12 The ACCC shall consider a communication unless it is anonymous, constitutes an abuse of right, is manifestly unreasonable or is incompatible with Dec I/7 or the Convention (Dec I/7, Annex, para 20). On the basis of this provision the ACCC rules on the admissibility of complaints. The ACCC declared a communication inadmissible, inter alia, because it sought to use the ACCP as a mechanism for reviewing unsuccessful environmental litigation (ACCC/C/2004/07 (Poland)), raised an issue that is significantly similar to a communication under consideration by the Committee (ACCC/C/2012/75 (United Kingdom)), was brought by an organ of state (ACCC/C/2013/97 (Austria)), was accompanied by insufficient information corroborating the claim (ACCC/C/2013/79 (Italy)), and raised issues considered in a previous ACCC finding which were subject to implementation monitoring by the ACCC (ACCC/C/2008/25 (Albania) and ACCC/C/2013/88 (Kazakhstan), para 93). Since 2010, the ACCC has applied summary proceedings to communications that raise issues considered in previous findings involving the same party (Report of the Compliance Committee on its 28th Meeting, paras 45–46; eg ACCC/C/2011/64 (United Kingdom)).
13 The ACCC is ‘at all relevant stages [of its procedure] to take into account any available domestic remedy unless the application of the remedy is unreasonably prolonged or obviously does not provide an effective and sufficient means of redress’ (Dec I/7, Annex, para 21). The ACCC noted that ‘this is not a strict requirement to exhaust domestic remedies’ and considered communications where there is lack of clarity regarding the availability of such remedies (ACCC/C/2005/12 (Albania), para 60; and ACCC/C/2013/93 (Norway), para 65). The ACCC suspended consideration of part of a communication pending the outcome of a domestic remedy (ACCC/C/2008/32 (Part I) (European Union), para 7). Generally, the ACCC closes a communication when domestic remedies are pending and points the communicant to the option of requesting the reopening of the file when domestic remedies have been exhausted (ACCC/2004/09 (Armenia)). Whether a procedure that is pending before an ombudsperson bars the ACCC from considering a communication depends on its nature. The ACCC, for example, suspended proceedings pending a decision by the Danish ombudsperson even though it did not rule on whether the procedure met the requirements of Article 9 (1) Aarhus Convention (ACCC/C/2008/28 (Denmark)), and held that consideration by the Spanish ombudsperson did not prevent it from considering a communication due to the limited powers of the Spanish ombudsperson (ACCC/C/2009/36 (Spain) para 53). It also ruled that the Norwegian Parliamentary Ombudsman procedure amounted to an administrative remedy in the sense of the second sentence of Article 9 (1) (ACCC/C/2013/93 (Norway) paras 85–86).
14 The ACCC exercises a wide margin of discretion as to which allegations it will consider in its findings. The ACCC generally considers those allegations that appear to be of a systematic nature as well as those that are supported by significant evidence and, as mentioned, does not consider issues that have been considered in previous findings involving the same party.
15 After a preliminary determination of admissibility, a communication is sent to the party concerned (Dec I/7, Annex, para 22), which is to reply to the communication in writing ‘as soon as possible but not later than five months after any communication is brought to its attention’ (Dec I/7, Annex, para 23). The ACCC may request both the communicant and the party concerned to submit additional information or clarifications, engage experts or advisors, consider any information submitted to it, hold hearings, and it may, with the consent of the party concerned, undertake information gathering in the territory of that party (Dec I/7, Annex, paras 24–25). In practice, the ACCC asks for clarifications or additional information and holds hearings, in which both the communicant and the party concerned are entitled to participate (Dec I/7, Annex, para 32) and which observers attend. Hearings of the ACCC thus are open to the public, even if confidentiality of information—including of the identity of the members of the public submitting that information—and hearings behind closed doors may be requested (Dec I/7, Annex, paras 26–31; and ACCC/C/2014/102 (Belarus), paras 62–63). The deliberations of the ACCC about its findings and recommendations are confidential and take place behind closed doors (Dec I/7, Annex, para 33). Draft findings and recommendations are sent to the party concerned and the communicant, and any comments they may have are taken into account when the ACCC drafts the final version of its findings and recommendations (Dec I/7, Annex, para 34). The ACCC in principle adopts its findings and recommendations by consensus, and if consensus is not attainable the views of individual members of the ACCC may be reflected in its reports (Dec I/7, Annex, para 35). In practice the ACCC has adopted its findings and recommendations by consensus.
16 Findings and recommendations adopted by the ACCC subsequently are considered by the MOP, which decides upon the measures to be taken by the party concerned with the aim of attaining its compliance with the Convention. In practice, the MOP has adopted the findings and recommendations submitted to it by the ACCC. However at MOP VI, in 2017, consensus could not be reached regarding the findings and recommendations that the ACCC adopted in ACCC/C/2008/32 (Part I and Part II) (European Union), resulting in the postponement of the matter to MOP VII (Report of the sixth session of the Meeting of the Parties, paras 55–65). Measures that the MOP may adopt include the following: providing advice and facilitating assistance to the party concerned; making recommendations, including on specific measures; requesting the party concerned to submit a strategy on how it will attain compliance; issuing a declaration of non-compliance; issuing a caution; suspending rights and privileges of the party concerned under the Convention; or taking such ‘other non-confrontational, non-judicial and consultative measures as may be appropriate’ (Dec I/7, Annex, para 37). The MOP has issued cautions against: Turkmenistan (effective on 1 May 2009, MOP Decision III/6e; effective 1 January 2013, MOP Decision IV/9g; lifted at MOP V, July 2014, MOP Decision V/9l); Ukraine (did not enter into effect, MOP Decision III/6f; entered into effect at MOP IV, July 2011, MOP Decision IV/9h; maintained at MOP V, July 2014, MOP Decision V/9m); and Bulgaria (entered into effect at MOP VI, MOP Decision VI/8d). It also has adopted the other measures at its disposal, even if it has never suspended the rights of a party under the Convention.
17 Pending consideration of its finding and recommendations by the MOP, the ACCC, in consultation with the party concerned, may provide advice and facilitate assistance. It may also, in agreement with the party concerned, make recommendations, including on specific measures, and request the submission of a compliance strategy (Dec I/7, Annex, para 36). The rationale for this provision is the fact that the MOP meets only every three years, implying that the taking of remedial action by a party may face long delays if no such action is taken in the inter-sessional period. In practice, the ACCC and a party concerned regularly have agreed on measures to be taken by the latter, pending consideration of ACCC’s findings and recommendations by the MOP.
D. Procedural Environmental Rights
18 It is on the basis of the ACCP that the ACCC considers allegations of non-compliance with the Aarhus Convention. While Article 1 of the Convention refers to ‘the right of every person of present and future generations to live in an environment adequate to his or her health and well-being’, this right is not justiciable. Instead, the Convention provides three justiciable procedural rights: access to information, public participation in decision-making, and access to justice. These three rights and selected rulings by the ACCC are discussed below in order to illustrate how procedural environmental rights have enabled members of the public, including NGOs, to engage in substantive dialogue with public authorities on how to protect the environment and realize the objective of the Convention, as expressed in its Article 1. Prior to engaging in that discussion, the general obligations under Article 3 of the Convention are outlined.
1. General Obligations
19 In order to enable members of the public to exercise the three procedural environmental rights, parties to the Aarhus Convention must comply with the general obligations set out in its Article 3. These obligations include the following: taking legislative and other measures to implement the provisions of the Convention (Art 3 (1)); provide assistance and guidance to the public seeking to use these rights (Art 3 (2)); promote environmental education and awareness (Art 3 (3)); provide recognition of and support to organizations or groups seeking to protect the environment (Art 3 (4)); promote the application of the Convention’s principles in international environmental decision-making and international organizations (Art 3 (7)); ensure that persons exercising their rights under the Convention ‘shall not be penalized, persecuted or harassed’ (Art 3 (8)); and ensure that the public has access to the rights enshrined in the Convention ‘without discrimination as to citizenship, nationality or domicile, and in case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities’ (Art 3 (9)). In addition, Article 3 of the Convention provides that it shall not prevent its parties from providing broader rights than those enshrined in the Convention (Art 3 (5)), nor require derogation from existing rights (Art 3 (6)). Note that the Convention does not provide a stand-still provision, which would have required parties not to derogate from existing participatory rights.
20 The ACCC, in considering the procedural rights enshrined in the Convention, may find that a party has inadequately implemented those rights and is in non-compliance with Article 3 (1) of the Convention. For example in ACCC/C/2008/33 (United Kingdom) the ACCC found non-compliance with Article 3 (1) because the party concerned had not taken the ‘necessary legislative, regulatory and other measures to establish a clear, transparent and consistent framework to implement’ Article 9 (4) of the Convention (para 140). Similarly in ACCC/C/2010/54 (European Union) it found the party concerned to be in non-compliance with Article 3 (1) due to it not having in place a proper regulatory framework or other measures to ensure that public participation in conformity with the Convention would take place in the adoption of National Renewable Energy Action Plans, which EU Member States were to prepare based on EU legislation (para 87).
21 The ACCC found that whether treatment amounts to penalization, persecution, or harassment is to be assessed on a case-by-case basis. Such an assessment is to include an evaluation of whether the treatment complained of might be compliant with Article 3 (8) of the Convention because it serves a legitimate public purpose, such as protecting public order (ACCC/C/2014/102 (Belarus), paras 68–69). It also found that Article 3 (8), covers not only public authorities, as defined in Article 2(2) of the Convention (see below sec D.2) but includes ‘any State body or institution, including those acting in a judicial or legislative capacity’, and covers omissions by such bodies or institutions to prevent acts by ‘private natural or legal persons’ which may constitute penalization, persecution, or harassment of members of the public seeking to exercise their rights under the Convention (ACCC/C/2014/102 (Belarus), paras 70–71). The ACCC in this case also set out the applicable level and burden of evidence, based on how the European Court of Human Rights (ECtHR) has determined the occurrence of discrimination. The ACCC specified that it is for the communicant to ‘establish a prima facie case that members of the public were penalized, persecuted or harassed because they sought to exercise their rights under the Convention’. Thereafter, ‘the burden of proof moves to the Party concerned to show, on balance of probabilities, that the penalization, persecution or harassment was entirely unrelated to the fact that those persons sought to exercise their rights under the Convention’ (ACCC/C/2014/102 (Belarus), paras 72–73).
2. Access to Information
22 Article 4 of the Aarhus Convention requires public authorities to make environmental information available to the public upon request. If a member of the public considers that a request for information is not dealt with in accordance with Article 4, they shall have access to a review procedure (Art 9 (1) Aarhus Convention, see below sec D.3). The Convention also requires parties to collect, update and regularly make available environmental information (Art 5 Aarhus Convention).
23 Public authorities are defined as (1) government institutions at all levels, (2) ‘natural or legal persons performing public administrative functions under national law’, as well as (3) ‘any other natural or legal persons having public responsibilities or functions, or providing public services’ under the control of either of the former, and (4) also include the institutions of the EU (Art 2 (2) Aarhus Convention). The last paragraph of Article 2 explicitly excludes ‘bodies or institutions acting in a judicial or legislative capacity’ from the definition of public authorities. The public, as mentioned above (see above sec C), is defined as ‘one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups (Art 2 (4) Aarhus Convention; see also sec C above).
24 The Convention provides a broad definition of environmental information. It includes information related to the state of elements of the environment; to factors and activities or measures affecting the environment and economic analysis and assumptions used in decision-making; as well as to the state of human health and safety, conditions of human life, cultural sites, and built structures (Art 2 (3) Aarhus Convention). The ACCC determined that such information includes feasibility studies related to draft legislation on the import and disposal of radioactive waste (ACCC/C/2004/1 (Kazakhstan), para 18), stand-alone governmental decrees relating to land use and planning (ACCC/C/2004/08 (Armenia), para 20), financial agreements (ACCC/C/2007/21 (European Community), para 30 (b)), rental contracts for lands administered by a state forestry fund (ACCC/C/2008/30 (Moldova), para 29), raw data, ie non-calibrated data, on the state of the air and the atmosphere (ACCC/C/2010/53 (United Kingdom), para 75), ‘data arising from the application of different methods for calculating the CO2 reductions generated by wind energy projects, including data from actual measurements’ (ACCC/C/2012/68 (European Union and United Kingdom), para 88), as well as an archaeological study and archaeological discharge certificate related to a mining site (ACCC/C/2012/69 (Romania) paras 49–50).
25 Environmental information is to be made available to the public without an interest having to be stated (Art 4 (1) Aarhus Convention), within a maximum period of two months (Art 4 (2) Aarhus Convention) and at costs which shall not exceed a reasonable amount (Art 4 (8) Aarhus Convention). The Convention also provides that grounds for refusal (Art 4 (3) Aarhus Convention) shall be restrictively interpreted (Art 4 (4) Aarhus Convention). The ACCC found the latter to imply that ‘where there is a significant public interest in disclosing certain environmental information and a relatively small amount of harm to the interests involved, the Convention requires disclosure’ (ACCC/C/2007/21 (European Community) para 30 (c)). The ACCC also held that nuclear-related environmental information cannot unconditionally be declared confidential (ACCC/C/2013/89 (Slovakia) para 84). Moreover, information exempted from disclosure shall be separated out if possible without prejudicing confidentiality (Art 4 (6) Aarhus Convention). A refusal to disclose requested information shall be provided in writing, if the request was in writing or the applicant so requests (Art 4 (7) Aarhus Convention). The ACCC has stressed ‘that the duty to state reasons is of great importance, not least to enable the applicant to be in a position to challenge the refusal for information under the procedures stipulated’ in Article 9 (1) of the Convention’ (ACCC/C/2013/93 (Norway) para 82). Note, however, that an unreasoned refusal to provide requested environmental information also provides a ground for initiating the procedures under Article 9 (1) (see below sec D.4).
3. Public Participation in Decision-Making
26 Article 6 of the Aarhus Convention requires parties to have in place procedures that enable the public concerned to participate in decision-making processes that seek to permit proposed activities. If a member of the public concerned considers that a party has failed to comply with the requirements of Article 6, they shall have access to a review procedure (Art 9 (2) Aarhus Convention, see below sec D.4).
27 Relevant activities under Article 6 of the Convention include the following: activities listed in Annex I to the Convention (Art 6 (1) (a) Aarhus Convention); any change or extension of an activity that itself meets the criteria or thresholds set out in Annex I (Annex I, para 22); those activities not listed in Annex I but for which ‘public participation is provided for under an environmental impact assessment in accordance with national legislation’ (Annex I, para 20); and activities not listed in Annex I, but that ‘may have a significant effect on the environment’ in accordance with Article 6 (1) (b) of the Convention. Under Article 6 (1) (b) a party has the duty to determine, in accordance with its national law, whether an activity is subject to the public participation requirements of Article 6. The ACCC held that decisions determining whether an activity is to be subjected to an environmental impact assessment (‘EIA’)—so-called EIA screening decisions—qualify as determinations under Article 6 (1) (b) (ACCC/C/2010/50 (Czech Republic) para 82). As a result, these decisions are subject to the requirements of Article 6 and concomitantly Article 9 (2) of the Convention applies to them.
28 Article 6 of the Convention refers to the ‘public concerned’, as opposed to Article 4 of the Convention, which refers to ‘the public’ as defined in Article 2 (4) of the Convention (see above secs D.2 and C). It thereby creates participatory rights for ‘the public affected or likely to be affected by, or having an interest in, the environmental decision-making,’ including ‘non-governmental organizations promoting environmental protection and meeting any requirements under national law’, which ‘shall be deemed to have an interest’ (Art 2 (5) Aarhus Convention). The ACCC found that the public concerned includes tenants, and not just owners, of buildings or land (ACCC/C/2010/50 (Czech Republic), para 67). It also held that the area in which the public concerned may be located depends on the area potentially affected by the proposed activity and may include members of the public in a neighbouring country (ACCC/C/2013/91 (United Kingdom), para 69). Moreover, ‘foreign or international non-governmental environmental organizations that have similarly expressed an interest in or concern about the procedure’ generally would be among the public concerned (ACCC/C/2004/03 (Ukraine), para 26). It also has determined that in transnational situations, ‘the obligation to ensure that the requirements of Article 6 are met always rests with the Party of origin’ irrespective of whether another treaty, such as the 1991 Convention on Environmental Impact Assessment in a Transboundary Context may require the party of origin and the affected party to cooperate in the execution of a transboundary EIA (ACCC/C/2012/71 (Czechia), paras 67–69 and 72).
29 The Convention determines: the nature of the information to be made available to the public concerned (Art 6 (2) Aarhus Convention); the grounds on which information may be refused, which are to be interpreted restrictively (Art 6 (6) Aarhus Convention); that information shall be made available to the public concerned early in the decision-making procedure (Art 6 (2)) as well as during the decision-making procedure (Art 6 (6)); and that public participation procedures shall allow for reasonable time-frames (Art 6 (3) Aarhus Convention), and take place early in the decision-making procedure ‘when all options are open and effective public participation can take place’ (Art 6 (4) Aarhus Convention). Article 6 of the Convention specifies what constitutes relevant information in a permitting procedure. It, for example, refers to information about the proposed activity, nature of possible activity, opportunities for participation, and responsible public authority (Art 6 (2)) as well as descriptions of the site, significant effects, and measures to prevent or reduce those effects (Art 6 (6)). In addition, the provisions of Article 4 (3) and 4 (4) of the Convention apply (Art 6 (6)). The latter implies that ACCC findings related to those provisions also may be relevant in this context (see above sec D.2). The ACCC determined that early participation is required in every phase of a decision-making procedure (ACCC/C/2006/16 (Lithuania), para 71) and that lack of participation in an early phase of decision-making cannot be compensated for later in the decision-making procedure (ACCC/C/2005/12 (Albania), para 28). It moreover held that public participation cannot be limited to the EIA stage of decision-making, given that the EIA procedure is part of a broader permitting procedure (ACCC/C/C/2010/50 (Czech Republic), para 70). The ACCC in a number of cases ruled on what constitutes ‘reasonable time-frames’ and ‘early public participation, when all options are open’. These decisions tend to be context specific, depending on the nature of the activity and its potential effect, meaning that it is difficult to draw general conclusions on these points (ACCC/C/2006/16 (Lithuania), paras 69–71).
30 The Convention further determines that due account must be taken of the outcome of public participation (Art 6 (8) Aarhus Convention) and that decisions must be reasoned and made available to the public (Art 6 (9) Aarhus Convention). These provisions entail the public not having a veto (ACCC/C/2008/29 (Poland), para 29) and that a decision on an activity should set out how public participation was taken into account (ACCC/C/2008/24 (Spain), para 100). As in the case of access to information, a reasoned decision is also important because it enables the members of the public concerned to be in a position to challenge the decision under Article 9 (2) of the Convention. Yet, in this case an unreasoned decision as such also provides a ground for accessing the review procedures under Article 9 (2) (see below sec D.4).
31 Plans and programmes also shall be prepared ‘within a transparent and fair framework, having provided the necessary information to the public’ and Article 6 (3), 6 (4), and 6 (8) of the Convention apply in this context (Art 7 Aarhus Convention). Finally, parties ‘shall strive to promote effective public participation’ during the preparation of executive regulations and generally applicable legally binding instruments (Art 8 Aarhus Convention). Whether an act constitutes an activity under Article 6 of the Convention, or a plan or programme under Article 7 depends on the context and legal effects of the act in question, not how national legislation denotes the act (ACCC/C/3004/8 (Armenia), para 28). Similarly, when projects, often large infrastructural works, are approved by way of legislation these have been considered to be activities, with Article 6 of the Convention applying to the permitting process (ACCC/C/2011/61 (United Kingdom), paras 53 and 60–61). In case of public participation in the preparation of plans of programmes, the public authority involved is entitled to identify the members of ‘the public which may participate’, ‘taking into account the objectives of the Convention’. The ACCC found this to mean that public participation needs to be all-inclusive, not limited to eg private sector actors (joined findings ACCC/C/2010/45 and ACCC/C/2011/60 (United Kingdom), para 81) and that ‘a targeted consultation involving selected stakeholders, including NGOs, can usefully complement but not substitute for proper public participation, as required by the Convention’ (ACCC/C/2010/54 (European Union), para 83).
32 The ACCC also determined that private actors can play a role in, for example, EIA procedures provided they ‘are impartial and do not represent any interests related to the proposed activity being subject to the decision-making’ (ACCC/C/2009/37 (Belarus), para 79). This means that, while a consultancy firm might be contracted to conduct the EIA procedure, the procedure cannot be conducted by the developer seeking to realize an activity. Similarly, the ACCC has held that if significant decision-making takes place during pre-planning procedures in which private parties, such as developers, take part, all-inclusive public participation is to take place during these early stages of planning, regardless of whether they are part of the formal planning process (joined findings ACCC/C/2010/45 and ACCC/C/2011/60 (United Kingdom), paras 80–82).
4. Access to Justice
33 Access to justice in environmental matters is dealt with in Article 9 of the Convention. It requires parties to have in place ‘review procedures before a court of law or another independent and impartial body established by law’ where members of the public or the public concerned are able to claim their entitlements under Articles 4 and 6 of the Convention (Art 9 (1) and 9 (2) Aarhus Convention), as well as to challenge acts and omissions of private and public actors (Art 9 (3) Aarhus Convention). It also requires parties, if they provide for review by a court of law, to have in place ‘an expeditious procedure established by law that is free of charge or inexpensive’ and through which a decision on access to information can be reviewed (Art 9 (1) Aarhus Convention). Such an administrative procedure may also be established for Article 6 decisions (Art 9 (2) Aarhus Convention).
34 In the context of Article 9 (1) of the Convention, the ACCC determined that it is not its role to find non-compliance in every situation where a public authority made a mistake in supplying the information requested. Instead, what matters is that the party concerned has in place procedures, including review procedures, to correct any mistakes made (ACCC/C/2007/21 (European Community), para 33). It also found that clear guidance for the judiciary on its role in implementing the Convention as well as on standing requirements, also for NGOs, is required (ACCC/C/2004/1 (Kazakhstan) para 23). Moreover, a party may be found to be in non-compliance if it does not implement a judgement delivered by one of its courts (ACCC/C/2008/30 (Moldova) para 35).
35 Article 9 (2) of the Convention determines that parties shall ensure by way of national legislation that the public concerned ‘having a sufficient interest’ or ‘maintaining impairment of a right, where the administrative law of a Party requires this as a precondition’ have access to a review procedure. The ACCC found that ‘although what constitutes a sufficient interest and impairment of a right shall be determined in accordance with national law, it must be decided “with the objective of giving the public concerned wide access to justice” within the scope of the Convention’ (ACCC/C/2005/11 (Belgium), para 33). The ACCC thereby has indicated that there is a limit to the discretion of the parties and created scope for its own assessment of the situation. The ACCC also confirmed that the review envisaged by Article 9 (2) encompasses both substantive and procedural legality (ACCC/C/2008/33 (United Kingdom) para 123). The ACCC with respect to tiered decision making permitting processes held that ‘it may not be necessary to allow members of the public concerned to challenge each such decision separately in an independent court procedure’. Instead, decisions of a preliminary character may be integrated into a subsequent decision, provided that the ‘previous decision is subject to judicial review upon appeal of the final decision’ (ACCC/C/2011/58 (Bulgaria) para 77). In addition, the ACCC specified the relationship between Article 6 of the Convention and access to justice. It held, on the one hand, that participation in a permitting procedure, based on Article 6, is not a precondition for challenging a permitting decision under Article 9 of the Convention. On the other hand, it found that ‘if NGOs were to develop a practice to deliberately opt not to participate during public participation procedures, though having the opportunity to do so, but instead to limit themselves to using administrative or judicial review procedures to challenge the decision once taken, that could undermine the objectives of the Convention’ (ACCC/C/2012/76 (Bulgaria), para 68).
36 As mentioned above, the Convention also encompasses a general right of access to justice by providing that ‘where they meet the criteria if any, laid down by its national law, members of the public have access to 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’ (Art 9 (3) Aarhus Convention). The ACCC found that even if Article 9 (3), as opposed to Article 9 (2), does not refer to either procedural or substantive legality ‘the issue to be considered in such a review procedure is whether the act or omission in question contravened any provision—be it substantive or procedural—in national law relating to the environment’ (ACCC/C/2008/33 (United Kingdom), para 124). Moreover, it found that ‘national law relating to the environment’, a phrase not defined in the convention, needs to be understood broadly, and found guidance in the definition of environmental information in Article 2 (3) of the Convention to interpret the phrase and conclude that it ‘is not limited to “environmental laws”, eg, laws that explicitly include the term “environment” in their title or provisions. Rather, it covers any law that relates to the environment’ (ACCC/C/2011/63 (Austria) para 52; joined findings ACCC/C/2013/85 and ACCC/C/2013/86 (United Kingdom), paras 70–71; and ACCC/C/2008/32 (Part II) (European Union) para 100). The ACCC has also found that the phrase ‘where they meet the criteria if any, laid down by its national law’ implies the following:
the Convention is intended to allow a great deal of flexibility in defining which environmental organizations have access to justice. On the one hand, the Parties are not obliged to establish a system of popular action (“actio popularis”) in their national laws with the effect that anyone can challenge any decision, act or omission relating to the environment. On the other hand, the Parties may not take the clause “where they meet the criteria, if any, laid down in its national law” as an excuse for introducing or maintaining so strict criteria that they effectively bar all or almost all environmental organizations from challenging acts or omissions that contravene national law relating to the environment (ACCC/C/2005/11 (Belgium) para 35).
37 The Convention determines that the procedures referred to above shall provide ‘adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely, and not prohibitively expensive’ (Art 9 (4) Aarhus Convention). The ACCC held that what matters is whether the conditions set by Article 9 (4) are met in practice, not if they are available in theory (ACCC/C/2008/24 (Spain) para 105). It has also held that for a remedy to be adequate and effective, courts in considering a challenge to an EIA or a strategic environmental assessment (‘SEA’) decision should consider the substance of the claim and not rely solely on the conclusions of the contested EIA/SEA decision (ACCC/2012/76 (Bulgaria) paras 69–77). In determining whether the cost of procedures are prohibitively expensive the ACCC held that ‘the cost follow the event [or losing party] rule is not inherently objectionable under the Convention’ (ACCC/C/2008/33 (United Kingdom), para 129), instead ‘it considers the cost system as a whole and in a systemic manner’ (ACCC/C/2008/33 (United Kingdom), para 128). It found that ‘by failing to ensure that the costs for all court procedures subject to Article 9 [of the Convention] are not prohibitively expensive, and in particular by the absence of any clear legally binding directions from the legislature or judiciary to this effect’ the party concerned fails to meet the requirements of Article 9 (4) (ACCC/C/2008/33 (United Kingdom), paras 141). In the same case it also held ‘that “fairness”’ in Article 9 (4) ‘refers to what is fair for the claimant, not the defendant’ (ACCC/C/2008/33 (United Kingdom), para 135), and that in cases of judicial review where a member of the public loses the case the fact that the public interest is at stake should be taken into account in the allocation of costs (ACCC/C/2008/33 (United Kingdom), para 134).
5. Access to Justice and European Union Law
38 The ACCC, in a number of communications, considered the court system of the EU in relation to Article 9 of the Convention. The main issue at stake in these communications has been the lack of standing for individuals and NGOs to challenge acts and omissions of the institutions and bodies of the EU. The most important findings of the ACCC are analysed in the following paragraphs of this section (see further Pirker, 2016, and 2017).
39 The preliminary ruling procedure (Preliminary ruling: European Court of Justice (ECJ))— whereby if a matter of EU law arises before a court of a Member State it may ask the Court of Justice of the European Union (‘CJEU’) (European Union, Court of Justice and General Court) for a ruling on the matter—cannot compensate for the lack of procedures to challenge decisions, acts, or omissions of institutions and bodies of the EU, under Article 9 of the Convention (ACCC/C/2008/32 (Part I) (European Union), paras 89–90).
40 The manner in which the European Court of Justice interprets Article 263 (4) of the Treaty on the Functioning of the European Union (‘TFEU’) (formerly Article 230 (4) of the Treaty establishing the European Community) is not in compliance with Article 9 (3) and therefore 9 (4) of the Convention (ACCC/C/2008/32 (Part I and II) (European Union)). Article 263 (4) of the TFEU has three limbs. In other words, it allows three categories of natural or legal persons to institute proceedings before the CJEU, namely if the act is ‘addressed to that person’, if the act ‘is of direct and individual concern to them’, and if ‘a regulatory act … is of direct concern to them and does not entail implementing measures’ (Art 263 (4) TFEU). The second and third limb of Article 263 (4) TFEU are relevant to the Aarhus Convention. In interpreting the phrase ‘of direct and individual concern’ in the second limb of the TFEU, the ECJ continues to use the so-called ‘Plaumann test’. The test entails that ‘persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed’ (ACCC/C/2008/32 (Part I) (European Union), para 82). The ACCC held that the application of the ‘Plauman test to environmental and health issues is that in effect no member of the public is ever able to challenge a decision or a regulation’ of EU institutions or bodies before the CJEU under this limb (ACCC/C/2008/32 (Part I), para 86; and ACCC/C/2008/32 (Part II), para 64 (European Union)).
41 The ACCC also found the CJEU’s interpretation of the third limb of Article 263 (4) TFEU to be too restricted for three reasons. First the ECJ’s interpretation of the phrase ‘regulatory act’, ie as limited to ‘acts of general application other than legislative acts’ was found to be too narrow (ACCC/C/2008/32 (Part II) (European Union), paras 68–70). Second, the ECJ’s interpretation of the phrase ‘of direct concern’, requiring the claimant to be affected in its legal position, was found by the ACCC to exclude environmental NGOs because environmental measures are unlikely to affect their legal position, given that they act to protect the environment (ACCC/C/2008/32 (Part II) (European Union), paras 71–74). Third, the ECJ’s interpretation of the phrase ‘does not entail implementing measures’, ie to mean that the regulatory act ‘must leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules’, was found to be too narrow by the ACCC (ACCC/C/2008/32 (Part II) (European Union), paras 75–78). Moreover, the ACCC found that the EU Regulation (EC) No 1367/2006, also known as the Aarhus Regulation, for various reasons, does ‘not correct or compensate for the failings in the European Union jurisprudence’, and that thus the EU remained in non-compliance with Article 9 (3) and 9 (4) of the Convention (Regulation (EC) No 1367/2006, para 120).
42 The ACCC also has considered whether the EU is responsible for the implementation of Article 9 (3) of the Convention by its Member States. It found that, given the present division of competences between the EU and the Member States, the Aarhus Convention does not require the EU to adopt legislation on access to environmental justice in the Member States (ACCC/C/2014/123 (European Union), paras 94–95). It reached this conclusion because in the legal order of the EU, when the EU has not adopted legislation on a matter of shared competence, the Member States are responsible for implementing relevant treaty obligations.
E. From Procedure to Substance and Wider Context
43 This contribution illustrates how procedural environmental rights have been used to develop platforms on which individuals and NGOs seeking to protect the environment can engage in substantive dialogue with public authorities on how to protect the environment. That dialogue takes place in decision-making procedures regarding the permitting of activities and if necessary in the court rooms of the parties to the Convention, and is underpinned by the various rights to information enshrined in the Convention (Arts 4, 5, 6 (2), and 9 (5) Aarhus Convention). If these platforms at local, national, or EU level do not deliver, the individuals or NGOs involved have access to the regional platform provided by the ACCP. While the dialogues that take place before the ACCP revolve around the three procedural rights enshrined in the Aarhus Convention, the underlying argument is that by not complying with these procedural rights a party to the Convention has prevented a member of the public from voicing its environmental concerns and having those concerns properly considered by public authorities—in other words, that a party to the Convention has refrained from engaging in substantive dialogue with members of the public, when, based on the Aarhus Convention, it should have.
44 The ACCP is not the only regional platform on which the dialogue about procedural environmental rights takes place, it operates in a context in which two regional courts are active—the ECJ and ECtHR (Hey, 2015). The ECJ, by virtue of the fact that the EU is a party to the Aarhus Convention, also monitors implementation of the Convention by Member States and the institutions of the EU, albeit not always to satisfaction of the ACCC. The ECtHR, as other regional human rights courts, has read the procedural rights protected under the Convention into the human rights protected by the European Convention on Human Rights (‘ECHR’), in particular Article 8 ECHR, the right to family and private life. This has meant that the Aarhus Convention’s procedural rights have also been applied to states that are not a party to the Aarhus Convention—such as Turkey—but are a party to the ECHR.
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