The Århus Convention by Jens Hamer, ERA

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1 The Århus Convention by Jens Hamer, ERA I. Introduction This dossier deals with the so called Århus Convention, an international environmental treaty aiming at involving citizens in the environmental decision making process. The dossier will thus first deal with the Convention itself before elaborating the attempts at EC level to implement its targets in the Member States. Finally, the steps taken to apply Århus to the Community institutions will be illustrated. II. The Århus Convention 1. Introduction The Convention's full name is Convention on Access to Information, Public Participation in Decision-Making and Access to Justice regarding Environmental Matters. It is part of the United Nations Economic Commission for Europe (UNECE) (http://www.unece.org/env/pp), which is one of five regional commissions of the United Nations. The 55 Member States include the current 25 Member States, with Romania and Bulgaria the two next accession candidates, the USA, Canada and the former Soviet Union countries. The UNECE s primary goal is to encourage greater economic co-operation between its Member States. The Århus Convention was negotiated among the Member States of the UNECE and adopted on 25 June 1998 at a pan-european meeting of environment ministers in the Danish city of Århus from which comes the name of he Convention. All the EU Member States signed the Århus Convention as well as the European Union itself. The Convention entered into force on 30 October 2001 after having obtaining the required number of ratifications. (NUMBER and countries) The EU has not yet ratified the Convention. As citizens often have a keen interest and as many decisions in the environmental field directly affect their quality of life, the Århus Convention (http://www.unece.org/env/pp/documents/cep43e.pdf) aims in involving them in the decision making process on environmental legislation. The idea is that involving citizens in protecting the environment will improve environmental protection. Thus the Århus Convention is based on three pillars which are linked to each other. In its first pillar, the Convention grants citizens an access to environmental information. This is a necessary condition for the second pillar of the Århus Convention, public participation in the decision making process. It is expected, that having the basic information on the environment, citizens will become involved in the decision making process. Their participation, based on the informations, in the environmental decision-making will enhance the quality of the decisions taken. The improved decision will on the other hand also have a broader acceptance among the public. In order to be able to fully fulfil their role citizens must, as the third pillar indicates, be able to challenge acts denying their access to information, and also be able to challenge the decision resulting out of the decision making process. In addition, the Århus Convention gives citizens the right to challenge in court acts in breach of environmental law in order to improve the protection of the environment and to improve enforcement of environmental law. It also aims at sustainable development in establishing an environmental responsibility for future generations as the Convention recognises that every person has the right to

2 live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations. The Convention thus combines fundamental and environmental rights in a democratic context. UN Secretary-General Kofi described it as the most ambitious venture in environmental democracy undertaken under the auspices of the United Nations. The Convention is as such inspired by was Principle 10 of the 1992 Rio Declaration on Environment and Development, which states that: "Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided." 2. Access to information The first pillar of the Århus Convention deals in articles 4 and 5 with access to information and thus contains the right of everyone to receive environmental information that is held by public authorities ( access to environmental information ). This can include information on the state of the environment, but also on policies or measures taken, or on the state of human health and safety where this can be affected by the state of the environment. Citizens are entitled to obtain this information within one month of the request and without having to say why they require it. In addition, public authorities are obliged to actively disseminate environmental information in their possession. 3. Public participation The second pillar of the Århus Convention, public participation, is laid down in articles 6 to 8, and gives the right to participate from an early stage in environmental decision-making. Arrangements are to be made by public authorities to enable citizens and environmental organisations to comment on, for example, proposals for projects affecting the environment, or plans and programmes relating to the environment, these comments to be taken into due account in decision-making, and information to be provided on the final decisions and the reasons for it ( public participation in environmental decision-making ). 4. Access to justice And finally, the third pillar (article 9 of the Århus Convention) gives the citizen an access to justice, thus, the right to challenge, in a court of law, public decisions that have been made without respecting the two before mentioned rights or environmental law in general ( access to justice ). III. EC Implementation 1. Overview The Community (http://europa.eu.int/comm/environment/aarhus/index.htm) has undertaken the necessary measures to ensure the effective application of the Convention. The first pillar of the Convention on public access to information was

3 implemented at Community level by Directive 2003/04/EC on public access to environmental information. The second pillar, which deals with public participation in environmental procedures, was transposed by Directive 2003/35/EC. A proposal for a Directive (http://europa.eu.int/eur-lex/en/com/pdf/2003/com2003_0624en01.pdf) published in October 2003 is intended to transpose the third pillar which guarantees public access to justice in environmental. Finally, a proposal for a Regulation published at the same time is intended to guarantee the application of the provisions and principles of the Convention by Community institutions and bodies. 2. Access to environmental information a) Introduction Already before the EU and its Member States have undertaken first steps to elaborate the Århus Convention, access to information has been granted in the European Community via Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment [Official Journal L 158 of ]. LINK This Directive has in regard of the adoption of the Århus Convention been amended by Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC [Official Journal L 41 of ]. LINK As Community law needs to be consistent with the Convention in order for the latter to be ratified, the Directive aims at that consistency, extends the level of access to information provided by Directive 90/313/EEC and repeals the earlier Directive as of 14 February Its purpose is also to ensure that environmental information is systematically available and disseminated to the public. b) Directive 90/313/EEC Directive 90/313/EEC has been seen as a prerequisite for stepping up the application and monitoring of Community environment law. Its aim was to combat disparities between the legislation in the Member States concerning access to environmental information held by public authorities which have been able to create inequality within the Community (as regards access to information and/or as regards conditions of competition). This Directive contained definitions about what is an environmental information or a public authority and stated derogations. c) Directive 2003/4/EC The new Directive 2003/4/EC grants a general right of access to information to any person, so even non-eu citizens will now be able to request environmental information from any public authority within the European Union. And of course the advantage of having one set of EU rules applicable is that the regime will be a harmonised one in order to implement Århus at the level of the Member States. The changes introduced by the Directive mainly concern the new obligation to make environmental information available on the Internet or via similar systems. According to Directive 2003/4/EC, environmental information, which applicants are entitled to, covers any kind of environmental information, such as on the state of the environment, but also on measures and policies likely to affect or designed to protect the environment. Wherever environmental elements have impacts, information on human health and safety are also covered. Any applicant, meaning any physical or legal person, including e.g. nongovernmental organisations, can submit a request for environmental information to any

4 public authority expected to have the information. However, a citizen s right of access to environmental information is not unlimited: for example, if public authorities do not have the information a citizen would like to receive because it is not relevant to their functions, there is no obligation for the public authority to try and obtain it. Also, where requests are unreasonable or too general, and on specific grounds (because of national safety, international relations, confidentiality of commercial or industrial information, investigations and intellectual property), an authority can exceptionally refuse to release environmental information. The Directive obliges the public authority to reply within one month. Authorities are allowed to charge for supplying the information, but only for reasonable costs. This means that, in practice, only reproduction and mailing costs should be charged. In addition, the Directive provides for a judicial or administrative review in case of refusals, so based on the third pillar of the Århus Convention, giving citizens a right to appeal against the decision of the public authority. As a first step the Directive introduces an administrative appeal, which is a review by the public authority itself or by another public authority designated to deal with such cases. The Member States are obliged to garantee for these administrative review procedures, which have to be rapid and free of charge. If the citizens are not satisfied with the reslt of the administrative review, they can take the public authority that they consider having breached of law to court. Thus the Directive obliges the Member States to to provide for review procedures before a court of law or another independent and impartial body established by law. 3. Public participation Directive 2003/35/EC amends existing public participation provisions and introduces access to justice provisions in Council Directive 85/337/EEC concerning the environmental impact assessment of certain public and private projects (EIA Directive), and Council Directive 96/61/EC concerning integrated pollution prevention and control (IPPC Directive). It also provides for public participation in the preparation of a number of environmental plans and programmes under EU Directives on waste, air quality, nitrates. The objective of Directive 2003/35/EC is to provide for public participation in respect of the elaboration of certain plans and programmes relating to the environment, such as the building of industrial installations, railways, motorways or airports, and providing for provisions on access to justice within Directives 85/337/ EEC and 96/61/EC in order to align Community legislation with the third pillar of the Århus Convention. The aim is that public authorities have to inform in time of relevant proposals, so that the public can submit their comments. These comments need then to be taken into consideration during the decision making, as decisions likely to affect the environment are taken at different levels: at locally, regionally, nationally and at European level. On the one hand, knowledge, especially at the local level, of the citizens is introduced into the decision making process and on the other hand leads this to an increase of acceptance of environmental legislation. Public participation has to be organised by the Member States in providing timely and adequate information to the public about the decision to be made. This can, for example, be done through publications in appropriate newspapers or via the Internet, but also in providing effective opportunities for the public concerned to submit comments and opinions and taking due account of the comments and opinions received. Finally the Member States have to guarantee that the public is informed of the final decision taken and the underlying reasons, and particularly the outcome and consideration of the public participation process.

5 4. Access to justice In order to face the challenge to transpose the requirements of the third pillar of the Århus Convention, the European Commission has issued a proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters on 24 October 2003 COM (2003) 624 final (http://europa.eu.int/eurlex/en/com/pdf/2003/com2003_0624en01.pdf). The proposal aims at establishing a framework of minimum requirements for access to judicial and administrative proceedings in environmental matters in order to achieve a better implementation and application of environmental law in the European Union, and to implement the third pillar of the Århus Convention. This proposal grants citizens the right to initiate administrative or judicial procedures against acts or omissions that do not comply with environmental law. The ultimate aim is to improve the application and enforcement of environmental law. With regard to this aim, the proposal establishes a set of minimum requirements on access to administrative and judicial procedures in environmental matters. According to the proposal, the Member States will have to ensure that the public have access to administrative or judicial proceedings against administrative acts or omissions which infringe environmental law if they have a sufficient interest or if they show that their rights have been affected. The Member States will also have to guarantee that qualified entities (associations, groups or organisations recognised by a Member State whose objective is protecting the environment) may initiate administrative or judicial proceedings against violations of environmental law, without showing a sufficient interest or impairment of a right if the subject of the procedure is within the scope of their statutory and geographically relevant activities. The proposed Directive lays down a procedure for recognising qualified entities. The Member States may choose between a preliminary procedure and a case-by-case (ad hoc) procedure. A qualified entity must always meet the following criteria: operate on a non-profit basis and pursue the objective of protecting the environment; have an organisational structure enabling it to achieve its objectives; be legally constituted and have experience in environmental protection; have its annual accounts certified by a registered auditor. The administrative and judicial procedures provided for in this proposal must be objective, effective, adequate, equitable, timely and not prohibitively expensive. As environmental issues are in most cases transboundary, the proposed Directive grants access to courts not just to citizens of the country in which the infringement occurred and environmental organisations operating in that country, but also across borders. IV. Applicability for EC Institutions 1. Introduction As the EC has also signed the Århus Convention and thus aims at meeting its requirements, the Community issued a proposal for a Regulation of the European Parliament and of the Council of 24 October 2003 on the application of the provisions of the Århus Convention on Access to Information, Public Participation in Decision-

6 making and Access to Justice in Environmental Matters to EC institutions and bodies (http://europa.eu.int/eur-lex/en/com/pdf/2003/com2003_0622en01.pdf) and a proposal for a Council Decision of 24 October 2003 on the conclusion on behalf of the European Community of the Convention on access to information, public participation and access to justice in environmental matters (http://europa.eu.int/eurlex/en/com/pdf/2003/com2003_0625en01.pdf). The latter proposal will enable the EU to ratify the Convention. The first proposal contains the provisions necessary to apply the Århus Convention to Community institutions and bodies. They will have to guarantee access for the public (one or more natural or legal persons, and associations, organisations or groups of such persons) to environmental information held by Community institutions and bodies, make environmental information available to the public in easily accessible electronic databases, provide for public participation in the preparation by the Community of plans and programmes relating to the environment and finally guarantee public access to justice at Community level in environmental matters. 2. Access to information Access to information is at present governed by Regulation (EC) No 1049/2001, which applies to any request for access to environmental information held by Community institutions and bodies. In addition to the rules laid down in Regulation 1049/2001, the proposal wants to introduce that the Community institutions and bodies must organise environmental information in their field of competency and make it systematically accessible to the public, particularly in databases disseminated by computer telecommunications or by other electronic means. The databases should consist of not only of reports on the implementation of Treaties, international Conventions or agreements, Community legislation, national or local legislation, measures, plans and programmes relating to the environment but also of reports on the state of the environment. Data derived from the monitoring of activities affecting the environment, authorisations affecting the environmentand environmental impact studies and risk assessments are also part of the databases. The environmental information made available for the public must, according to the proposal be up-to-date, accurate and comparable 3. Public participation The proposal for a Regulation also addresses decision-making at European level: Where the Commission, or other EU institutions and bodies, including the different agencies and even the banks prepare plans and programmes relating to the environment, they have to provide for the public to participate. Now all EU bodies will have to meet common minimum basic requirements when preparing plans and programmes relating to the environment. The provisions must: include a reasonable timeframe for informing the public of the plans and programmes and of how to participate, and for effective public participation in the preparation of the documents, allow the public to participate in the preparation of plans and programmes from the start, ensure that due account is taken of the results of public participation in the final decisions, identify the public which may participate (including non-governmental organisations).

7 4. Access to justice The relevant articles on access to justice in environmental matters are Articles 9 to 13 of the proposed Regulation. Those articles intend to fully align the Community law to the Convention's provisions on access to justice. The present proposal hence establishes access to justice provisions in relation to acts and omissions by Community bodies and institutions breaching environmental law. Qualified entities (associations, groups or organisations concerned with environmental protection and recognised by a Member State) entitled to exercise the right to take legal action if they consider that an administrative act or an omission by a Community institution or body is in breach of environmental law, are entitled to make a request for internal review to the Community institution or body in question. If the qualified entity which made the request considers that the decision of the Community institution or body does not guarantee conformity with environmental law, it may institute proceedings before the Court of Justice. The entity may also take such action if the institution fails to communicate its decision within the specified period. Qualified entities are entitled to take legal action without having to demonstrate the impairment of a right or a sufficient interest when they have been recognised and when the subject matter is covered by their statutory activities. In order to be recognised, a qualified entity must: be independent, operate on a non-profit basis and in the general interest of the environment, be active at Community level (in at least 3 Member States), have been legally constituted for more than two years and have been actively pursuing environmental protection, have its annual statement of accounts for the two preceding years certified by a registered auditor.

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