EU Framework for Access to Justice in Environmental Matters · both authorities and private persons violating national environmental laws ... applicable for all EU law on environment

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EU Framework for Access to Justice in Environmental Matters

For AmCham EU

Jean-Philippe Montfort Partner

+32 2 551 5970 [email protected]

Sébastien Louvion Counsel

+32 2 551 5973 [email protected]

Aarhus Convention

• United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, held in Aarhus (Denmark). Entered into force 30 October 2001

• Establishes rights of the public and obligations for public authorities based on 3 pillars:

1. Access to environmental information (within one month of request)

2. Right to participate in environmental decision-making (right to comment and access to justification of final decision)

3. Access to justice to challenge public decisions or omissions made in violation of the other 2 pillars, as well as acts and ommissions of both authorities and private persons violating national environmental laws

• Also imposes proactive obligations on authorities in collection and dissemination of environmental information

EU Implementation of Aarhus Convention

• First and second pillar adopted into EU law with two Directives in 2003, which were to be implemented into national laws in 2005

– Directive 2003/4/EC on public access to environmental information

– Directive 2003/35/EC on public participation in environmental decision-making

• Third pillar subject of Proposal for a Directive on access to Justice in Environmental Matters (COM(2003) 624) in October 2003, never adopted due to strong opposition of some MS

• Adoption of Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention in Environmental Matters to Community institutions and bodies, applies from July 2007

– Establishes that Regulation (EC) No 1049/2001 on access to Parliament, Council and Commission documents shall apply to requests for access to environmental information

Diverging interpretations of the third pillar by Member States who signed the Aarhus Convention

Aarhus: Definition of Environmental Information

• Environmental information defined as:

– State of elements of the environment such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including GMOs, and the interaction among these elements

– Factors affecting or likely to affect elements of the environments, including substances, energy, noise and radiation, activities and policies, and cost-benefit and other economic analyses and assumptions used in environmental decision-making

– State of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they may be affected by the state of the elements

Aarhus: Access to Environmental Information

• Right granted to public (incl. their associations, organisations and groups) to request information from public authorities

• Information must be provided upon request within the framework of national legislation

– Without the need to state an interest

– In the form requested

– as soon as possible an within 1 month of request submission

• Exemptions:

– Response time can be extended to 2 months if justified by volume and complexity of information requested

– Information can be provided in another form if reasonable and justified

– Authorities can deny request based on a number of grounds

Aarhus: Grounds to deny access to Env. Information

• Information is already publicly available

• Information is not held by authority

• Request is too general or manifestly unreasonable

• Request on material in the course of completion, or relates to internal communications of public authorities where protected by national laws

• Disclosure would adversely affect other legitimate interests

– Confidentiality of proceedings of public authorities

– International relations, national defence, or public security

– Course of justice

– Confidentiality of commercial and industrial information when organized by law to protect a legitimate economic interest (cannot include emissions relevant for the protection of the environment)

– Intellectual Property rights,

– Confidentiality of personal data where protected under national law

– Protection of third party rights

– Protection of environment (ex: breeding site of rare species)

Aarhus: Public Participation in decision-making

• Principle applies to specific activities listed in Annex I (covers energy sector, production and processing of metals, mineral industry, chemical industry, waste management, industrial plants in specified sectors including construction of airports), and any other activity where public participation is provided for under an environmental impact assessment procedure under national legislation.

• Public must be kept informed of proposed activities, the nature of possible decisions, the public authority responsible for making the decision, details of the decisionmaking procedure, and the fact that the activity is subject to an environmental impact assessment procedure

• Public participation procedures must include reasonable time frames for the different phases to allow public to participate effectively

• Public must be provided free access to all information relevant for decision-making by competent public authorities

• Public must be allowed to submit any comments or information it considers relevant to the proposed activity

• Publuc must be kept informed of final decision, with acess to reasons and considerations on which decision is based

Aarhus: Access to Justice (1)

Related to Access to information - First Pillar (Art 9.1)

• Persons who consider their request for information has been ignored, wrongfully refused, or inadequately answered must have access to a review procedure before a court of law

• Procedure must be expeditious, free or inexpensive, and allow reconsideration by public authority or review by independent body

Related to Participation in decision-making - Second Pillar (Art 9.2)

• Members of the public concerned having a sufficient interest or rights impaired must have access to a review procedure before a court of law to challenge the substantive legality of any decision, act or ommission subject to the provisions on public participation

• Concept of « sufficient interest » and impairment of a right subject to national law, but must be consistent with objective of wide access to justice and include NGOs promoting environmental protection and meeting requirements under national law (qualify as « public concerned »)

Aarhus: Access to Justice (2)

Judicial Review – Third Pillar (Articles 9.3 and 9.4)

• Article 9.3: Parties to the convention must ensure that members of the public have access to a administrative or judicial procedures to challenge acts and omissions by private persons and public authorities that violate national environmental laws.

• Article 9.4: Procedures must provide adequate and effective remedies, including injunctive relief, be fair, equitable, timely, and not prohibitevly expensive.

All decisions must be given or recorded in writing, decisions of courts must be publicly accessible

Failed 2003 Commission Proposal on Access to Justice

• Objective : eliminate shortcomings in enforcement of environmental law (MS disparities in level of compliance and enforcement)

• Never adopted due to strong opposition of some MS

• Establishes a framework for minimum requirements for access to judicial review, including interim relief, limited by principle of subsidiarity:

– Scope restricted to challenging acts and omissions of public authorities, leaves actions against private persons to MS national laws

– No general right of legal standing for all natural persons

– 1st Pillar (judicial review for access to information) not covered

• Associations, groups and organisations qualify as « members of the public » subject to national law, procedure for recognition of qualified entities that have legal standing to access environmental proceedings

Commission 2003 Proposal: Framework

Access to Judicial Review:

• MS must ensure that members of the public and qualified entities can request internal review of administrative act or omission in breach of environmental law, must allow at least 4 weeks from act taken or date where act was required.

• Unless request is clearly unsubstantiated , public authority must respond with motivated decision in writing on refusal or measure to be taken to ensure compliance with environmental law within 12 weeks from receipt (can be extended to 18 weeks)

• If public authority fails to respond within deadline or applicant considers decision insufficient to ensure compliance with environmental law, applicant is entitled to institute environmental proceedings (defined as administrative or judicial review proceedings in environmental matters, other than proceedings in criminal matters, before a court or other independent body established by law, which is concluded by a binding decision)

Commission 2003 Proposal: Requirements for Legal Standing

• To have legal standing, Members of the public must:

– Have a sufficient interest, or – Have a right impaired – Definition of sufficient interest and impairment of a right left to MS

national laws

• «Qualified entities» have same rights as members of the public if:

– Matter is whithin their statutory activities/ geographical area

– The meet criteria for recognition of status:

• Independent and non-profit legal person with objective to protect the environment • Organisational structure ensuring adequate pursuit of statutory objectives • Legally constituted and with a prior history of active work for environmental

protection in conformity with its statutes (length of prior history requirement left to MS, cannot exceed 3 years)

• Annual statement of accounts certified by a registered auditor over period fixed by MS (cannot exceed 3 years)

– They may be subject to prior administrative process under MS national laws (if MS opt for prior process, must also allow for expeditious « ad hoc » recognition)

Uppsala University Report to the Commission

• Study from Uppsala University, Sweden, November 2012. Ordered by Commission to analyze implementation of Aarhus Convention Art 9.3 & 9.4 on judicial review in selected MS

• Report acknowledges need to cover 3rd pillar in the absence of consensus on COM (2003) 624

• Issued after Slovak Brown Bear Case (C-240/09), which forces national courts to interpret law as much as possible to enable environmental NGOs to challenge administrative environmental decisions in MS

• Considers 4 options, concludes 3rd option is preferable:

1. Business as usual, soft-law approach (cooperation with judges and stakeholders, Commission guidelines)

2. Address gaps based on Art 258 TFEU

3. Draft new proposal or significantly amend COM (2003) 624 taking into account ECJ case law

4. Stick to original proposal with minor modifications

Recommendations for a new Commission Proposal (1)

General proposals

• Need for legislative alternative to promote predictability and legal certainty (definitions of administrative acts & omissions , environmental proceedings, etc…)

• Legal act must mirror scope of 2003 proposal, provide only main elements of judicial review of administrative decisions

Standing

• Simplify general standing of members of public through definition, including « affected or likely to be affected, or having an interest in, the environmental decision-making procedures », with NGOs meeting national criteria « deemed to have an interest »

• Reduce criteria for standing of NGOs: eliminate required time of activity and certification of accounts, or use alternative « combined approach »: time criterion (no more than 2 years existence) or public support (no more than 100 signatures)

• Need for anti-discrimination clause against foreign citizens and NGOs (long-rang emissions, transboundary waste movements)

• Standing cannot be conditioned on earlier participation in decision-making (members of the public must be allowed to assume authorities are « doing their job »)

Recommendations for a New Proposal (2)

Scope of review

• Need to clarify applicants can challenge content of decision (substantive legality), not just the way in which it was made (procedural legality)

• Strengthen right to challenge administrative omissions

Costs in the Environmental procedure

• Rules for cost-capping of environmental procedures, court and appeal fees, no cost recovery for public authorities

• Establish objective test for what is « prohibitively expensive »

• Consider public interest when deciding on legal aid

• Possibility for stronger liability for costs in malicious and capricious cases

Effectiveness

• Reduce criteria for access to injunctive relief and make it generally applicable for all EU law on environment to avoid cases « won in court, but lost on the ground », ban bonds or cross-undertakings in damages

• Include provision on need of timeliness for environmental procedure

Maastrict University Report

• Second study requested by the Commission on the socio-economic effects of the four options to implement the third pilar of Aarhus

• Study also favours option 3: « Draft a new proposal taking into account ECJ case law »

• Addditional policy suggestions:

– Provide a more precise definition of what environmental matters are – Stimulate the functioning of Environmental NGOs – Reduce costs and risks for plaintiffs – Promote behavioral change and legal culture to promote access to

justice

• European Commission is seeking views of stakeholders (including AmCham EU) on the four options

Thank you for your attention!

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