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Access to Information, Public Participation, and Access to Justice

The legal development relating to access to information, public participation, and access to justice in environmental matters within the EU as well as in the Member States is profoundly influenced by the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘Arhus Convention’)^ to which the EU has been party since 2005.63 As is evident from its name, the Convention comprises three parts, often referred to as ‘pillars’, relating to access to information (‘first pillar’), public participation in decision-making (‘second pillar’), and access to justice (‘third pillar’), respectively. When approving the Convention the EU issued a declaration regarding Article 9(3) of the Convention according to which existing EU law does not fully implement the procedures required by the Convention concerning access to justice 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 EU. Instead the Member States will remain responsible for the performance of these obligations until the EU adopts provisions of EU law covering the implementation of those obligations.[1] [2] [3] [4] [5]

Also with respect to matters that do fall under the Union’s responsibility, it has been criticised by the compliance committee of the Arhus Convention for failing to provide adequate access to justice, for example due to the far-reaching requirements that individuals must meet in order to have standing to challenge legal acts in front of the Court of Justice.65 Issues regarding legal standing for individuals in front of the Court of Justice or the General Court were addressed in Chapter 5. As will be shown in the following, the extent to which the Aarhus Convention’s requirements have been implemented in EU law differs between the three pillars. The obligations incumbent on the Member States and on the EU institutions, respectively, are addressed in separate legal acts. This is reflected in the structure of this chapter.

  • [1] Ibid, Annex.
  • [2] Findings and recommendations of the compliance committee with regard to communicationACCC/C/2008/32 (Part I) concerning compliance by the European Union adopted on 14 April 2011(24 August 2011) ECE/MP.PP/C. 1/2011/4/Add. 1.
  • [3] Council Directive 90/313/EEC on the freedom of access to information on the environment[1990] OJ L 158/56.
  • [4] [2003] OJ L 41/26.
  • [5] Case C-524/09 Ville de Lyon ECLI:EU:C:2010:822, para 35; and C-279/12 Fish Legal andShirley ECLI:EU:C:2013:853, para 37.
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