The interaction between the Aarhus Convention and EU law

1. The interaction between the Aarhus Convention and EU law Presentation on EELFs Conference 15 September 2016 Professor Jan Darpö, Juridicum/ Uppsala Universitet Ed. 14/9-16

2. A2J according to Aarhus • Article 9(2):Substantive and procedural legality of any decision, act, omission (permits)… Article 6(1)a – listed activities (Annex I) Article 6(1)b – Significant Effect on the Envt Access to a review procedure before a court of law or another independent body (ECHR)… • Article 9(3): Acts and omissions in breach of environmental law, administrative or judicial procedures… • Article 9(4): Adequate and effective reme-dies…injunctive relief…fair, equitable, timely and not prohibitively expensive…

3. PP & A2J in EU law Article 9(2) Directive 2003/35/EC: EIA-directive (2011/92), IED (2010/75)… also in other directives, such as SEA (2001/42), WFD (2000/60), ELD (2004/35)… As well as Regulation 1367/2006 for internal review (C/2008/32 (Part II), draft findings)…

4. PP & A2J in EU law Article 9(3) EUs declaration on approval: In particular, the European Community 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 than the institutions of the European Community as covered by Article 2 (2)(d) of the Convention, 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.

5. A substantial body of case law • C-237/07 Janecek (2008): Air quality and A2J… • C-75/08 Mellor (2009): Authorities must give reason. • C-263/09 DLV (2010): ENGO standing… • C-115/09 Trianel (2011); ”Schütznormtheorie”… • C-240/09 Slovak Brown Bear (2011): Art. 9.3 & EU… • C-128/09 Boxus, C-182/10 Solvay (2011): EIA and “specific legislative acts”… • C-260/11 Edwards (2013): Costs in the UK… • C-72/12 Altrip (2013): Procedural defects in EIA and A2J… • C-416/10 Križan (2013): Effective remedies… • C-404/13 ClientEarth (2014): Air quality and A2J… • C-243/15 LZ, once again (2016?):

6. C-115/09 Trianel (2011) It follows more generally that the last sentence of the third paragraph of Article 10a of Directive 85/337 must be read as meaning that the ‘rights capable of being impaired’ which the ENGO are supposed to enjoy must necessarily include the rules of national law implementing EU envir-onment law and the rules of EU environment law having direct effect. C-115/09 Trianel [2011], para. 48

7. C-240/09 Slovak Brown Bear (2011) It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by EU law, in order to enablean ENGO, such as the LZ, to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law. C-240/09 Slovak Brown Bear [2011], para. 51

8. Setting the scene • Political level at EU and MS; reluctance, resistance, obstruction… = No directive on A2J, “guideline”… • The public: More PP and A2J, but the problems vary from country to country… • CJEU: Janus face… • Courts of MS: varies…

9. Q1: Article 9.2 and EU law “Self-executing effect”: • Differences in the lists, cfthe wolverine and the Bern Convention… • Any other activity that may have Significant Effect on the Environment   EIA Directive & Habitats Directive • …”in accordance with its national law”, national criteria…? • Example: Forestry (clear cutting) in SE & FI…

10. Q2: Article 9.3 and EU law • The opinion of the “founding fathers”; citizens suit provision, IG… • Autonomous understanding, systematic interpretation in accordance with the aim… • No AP, all kinds of decisions, but public  public concerned… • C-240/09 – so as to enable…

11. Q3: Article 9.3 and EU law • P of equivalence, P of effectiveness(C‑432/05 Unibet, p. 43)… • Legal principles of Union law includes legal protection in court; Art 4(3) & Art 19(1) 2nd para TEU, Art 47 European Charter… • Example 1; “Direct effect” + “effet utile” of environmental provisions: Species protection, Air quality, WFD… • Example 2: “Administrative procedures” and Article 267 TFEU…

12. HFD about the P of legal protection • P of “useful effect” (effet utile”) means that a court must have the possibility to check whether a national authority has acted accor-ding to clear and unconditional obligations according to a directive and – if not – can disapply conflicting national rules (C-127/02 p 66, C-263/08 p 45)… • Thus have ENGOs “rights” according to the Habitats Directive, which must enjoy judicial protection… • …in a court according to Article 267.

13. On a general level • Environmental “rights” or obligations to pursue a particular course of conduct…? = i.e. Trianel generally applicable or does the CJEUs reasoning only concern the application of Article 9.2..? • Dual system for A2J; national and EU law..?

14. ….and finally… THANK YOU FOR LISTENING..!    jan.darpo@jur.uu.se www.jandarpo.se/ In English