EDUARDO SALAZAR ORTUÑO UNIVERSITY OF MURCIA (SPAIN)

1. THE EFFECTIVENESS OF THE AARHUS CONVENTION COMPLIANCE COMMITTEE’S ACTION AFTER THE FIRST AND SECOND SPANISH CASES. EDUARDO SALAZAR ORTUÑOUNIVERSITY OF MURCIA (SPAIN)

2. PURPOSE OF THE PRESENTATION Analyze two Spanish communications to the Aarhus Convention Compliance Committee (ACCC). 1. Access rights’ local conflicts behind the cases 2. Procedure before the ACCC 3. Common Follow-up process and Meeting of the Parties (MOP) Decisions 4. Reaction and actions from the Party concerned 5. Success/Effectiveness in practice

3. Aarhus ConventionComplianceCommittee • UsefulComplianceToolforsome Multilateral EnvironmentalAgreements • CreatedbyDecision I/7 in 2001 • Whythe ACCC isdifferent? • Open forthepublicthroughcommunications • Members of thepublic in itscomposition • Participatoryprocedure Tremendousworkthelast 15 years (140 communications, including 9 againsttheEuropeanUnion) Importance of theACCC’sinterpretation of the AC provisions

4. Spanish and EU Aarhus legal framework • Ratification of the Aarhus Convention (AC) in 2005 • Directives 2003/4, 2003/35 on access to environmental information, public participation and some parts of access to justice • No Directive on Access to Justice (art. 9.3 AC) – not yet • Spanish Act 27/2006, regarding the 3 pillars

5. «FirstSpanish Case»ACCC/C/2008/24 • Building Project in Murcia’s Orchard (protectedtraditionalgarden) • NeighboursAssociationwantstoparticipate in theplanningdecisions: • Whattheyfound at Local and Regional Authorities and theCourts • Lack of Access toInformation (costs and no answer) • NotsufficientPublicParticipation (short time-frames and in holidays) • Barriersforthe Access toJustice (length, costs and interimrelief/precautionarymeasures)

6. ACCC Findings and Recommendations, december 2009 May 2008 – communicationsubmitted June 2008, duringthe 3rd MOP, preliminarydecisiononadmissibilitySpaindidn’treply April 2009: hearing in Geneve  Spaindin’dattend TheACCC: • foundSpain in a non-compliancestatus regardingseveral AC articles/obligations (4,6,9) • Recommended: • Substantives changesin local and regional regulations • Tocarryout a studyabout Access toJustice in Spain • Capacitybuildingforauthorities and campaignsforthepublic

7. «SecondSpanish Case»ACCC/C/2009/36 • Local NGO against Pollution in Almendralejo wanting to participate regarding two projects: wine distilliry and oil refinery • What they found at the Local authority and the Courts • Lack of information • Harrasment • Costs of justice • Troubles by accessing to legal aid schemes

8. ACCC Findings and Recommendationsjune 2010 • March 2009 – communication submitted • December 2009 – hearing with the Party concerned • The ACCC: • Found Spain in a non compliance status regarding AC articles/obligations (3.8, 4, 6, 9). • Recommended, together with ACCC/C/2008/24: • change the legal system of legal aid for environmental NGOs to make it clear and accessible • Study the double representation at the Court

9. Common «Follow Up Process» fortheboth cases Before the 4th MOP • ACCC asked the Aarhus Focal Point in the Spanish Ministry of Environment (MAGRAMA) to meet the Recommendations • Spain didn’t take proper actions before the 2011 MOP, only at the state level some capacity building • The communicants informed the ACCC about the poor implementation of the Recommendations by Spain Before the 5th MOP - SpanishMinistry of Environmentpresenteda Studyon Access toJusticerecognizingtheneed of legal reforms in thefield of precautionarymeasures and legal aid, butwiththedisagreement of Ministry of Justice

10. MOP Decisions of Non-Compliance • During 4th MOP in Chisinau theRecommendationswereendorsed and Spainwasdeclared in non-compliance (2011). • During 5th MOP in Maastricht Spainwasdeclaredagain in non-compliance (2014) • In 2015, afterthepressurefromthe AC Focal Point in Madrid, Murcia City Council reducedurbanplanning and buildinginfrmationto 0,03€ • The legal aidsystemremainnot accesible forsmallNGOs, duetothelack of environmentalNGOs in the General Acton Legal Aid’sreform • ManyCourts and Legal AidComissions are askingfor extra requirementsforenvironmentalNGOs as the «publicutilitydeclaration»

11. Conclusions • Local conflicts show how “access rights” of citizens groups for environmental protection are violated by regional and local Administrations, as well Courts. The common elements of both cases are the general obstacles to access to information, participation and access to justice and they show they are not isolated cases. • Aarhus Convention ratification and implementation of laws and regulations do not guarantee in Spain and Europe the Treaty enforcement : daily practice evidence the lack of guarantees for the citizens. • The initial procedure before the ACCC is easy, transparent and timely – if compared with court’s length in Spain - and participatory. • Communicants can allege anytime, and it is very important they do that during the follow-up process. Questions regarding national and regional law and administrative organization bring complexity to the case. • Follow-up process can be too long to achieve results for the communicant. The Party concerned can promise and not act.

12. Conclusions (2) • Spain’s attitude changed from an initial silence to a constructive dialogue through the Aarhus National Focal Point in the Ministry of Environment, specially after the MOP’s Non-Compliance Decisions. Except the Focal Point, the other concerned authorities – Ministry of Justice and Regional and Local Administrations and Courts – do not have the aim to collaborate and to change the situation. • Spain met the Recommendations only partially, there is no way to influence the Judicial and Legislative Power • The Study about Access to Environmental Justice in Spain recognize officially some gaps in the court practice and can be a important resource for citizens asking for effective justice by defending the environment. • Some questions/recommendations were missing in the follow up process (time-frames por participation, interim relief, specific procedure after no answer to an information request). • Legal Aid for small NGOs remains as a non-compliance situation, difficult to overcome without the Legislative Power.

13. Conclusions (3) • Waytoobtainchanges in thenationallawand practiceusingInternational Lawtools • Access Rights need guarantees for its enforcement, as the 3rd Pillar and the ACCC. • The three pillars are interdependent. • It is necessary to have a progressive interpretation of the Aarhus Convention to avoid national or local practices in order to impede the access rights’ exercise. • An “Aarhus Culture” it is needed by all the administrative levels, national, regional and local. All the authorities must be ready to implement the Convention.

14. ¡GRACIAS! THANK YOU FOR YOUR ATTENTION eduardo.salazar@um.es