Public participation and access to justice in the Member States

In order to implement the obligations of the Aarhus Convention regarding public participation and access to justice, the EU legislature has adopted Directive 2003/ 35/EC.^[1] Being based on a legal basis corresponding to the current Article 192(1) TFEU, the Directive aims to ‘contribute’ to the implementation of the obligations arising under the Aarhus Convention, in particular by providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment, and by improving the public participation and providing for provisions on access to justice within the EIA Directive and what is now the IED (Directive 2011/92/EU). (Art 1.)

In line with its aims, the Directive has two main functions. One is to lay down rules on public participation in respect of the drawing up of certain plans and programmes. The other is to amend the EIA Directive (2011/92/EU) and the IPPC Directive (now IED, 2010/75/EU) to ensure that they are compatible with the provisions of the Aarhus Convention.^{[2] [3] [4]} These amendments are dealt with in relation to the presentation of these two directives.8¹

As regards public participation with regard to certain plans and programmes, the Directive requires the Member States to ensure that the public is given early and effective opportunities to participate in the preparation and modification or review of the plans or programmes required to be drawn up under provisions listed in Annex I.82 These include directives on different kinds of waste, air quality, and protection of waters against pollution caused by nitrates from agricultural sources. The ‘public’ is defined as one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations, or groups. The public is, inter alia, to be informed about any proposals for such plans or programmes or for their modification or review, and to be entitled to express comments and opinions when all options are open before decisions on the plans and programmes are made. Due account shall be taken of the results of the public participation when the decisions are made. Exempted from this obligation are plans and programmes designed for the sole purpose of serving national defence or taken in case of civil emergencies, as well as those for which a public participation procedure is carried out under the SEA Directive (Directive 2001/42/EC) or the Water Framework Directive (Directive 2000/60/ EC). (Art 2.)

In 2003 the Commission tabled a proposal for a Directive on access to justice in environmental matters.^{[5] [6] [7] [8] [9]} The proposal aimed both at implementing the Aarhus convention as regards access to justice and also at eliminating shortcomings in the enforcement of environmental law by ensuring that representative associations seeking to protect the environment have access to administrative or judicial procedures in environmental matters. According to the Commission, practical experience showed that granting legal standing to environmental nongovernmental organisations (NGOs) can enhance the implementation of environmental law.8⁴ However, the proposal has not met with sufficient support in the Council for it to be adopted.85 As previously discussed, environmental NGOs are granted access to administrative or judicial procedures under the IED and the EIA Directive.

As a result of these circumstances, the Aarhus Convention is only partly implemented in EU law. As noted previously, this is reflected in the declaration regarding Article 9(3) of the Convention issued by the EU when approving the Convention.

However, since the EU is party to the Convention, its provisions form an integral part of the EU legal order. In areas where the EU has not exercised its powers and adopted provisions to implement the obligations which derive from the Convention it is for the courts of the Member States to determine, on the basis of national law, whether individuals could rely directly on the rules of the Convention in relevant cases or whether the courts must apply those rules of their own motion.8⁶

In the much discussed Lesoochranarske zoskupenie (also known as the Slovakian Bears case), the Court of Justice found that the provisions of Article 9(3) of the Aarhus Convention lack direct effect since they do not contain any clear and precise obligation capable of directly regulating the legal position of individuals. Nonetheless, national courts are required

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 [the Aarhus] convention and the objective of effective judicial protection of the rights conferred by EU law, in order to enable an environmental protection organisation ... to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law.8⁷

• [1] Directive 2003/35/EC of the European Parliament and of the Council providing for public participation in respect of the drawing up of certain plans and programmes relating to the environmentand amending with regard to public participation and access to justice Council Directives 85/337/EECand 96/61/EC—Statement by the Commission [2003] OJ L 156/17.
• [2] Amendments were made to Council Directive 96/61/EC concerning integrated pollution prevention and control (IPPC) [1996] OJ L 257/26 the provisions of which were later integrated intoDirective 2010/75/EU of the European Parliament and of the Council on industrial emissions (integrated pollution prevention and control) [2010] OJ L 334/17.
• [3] See sections 7.1 and 8.2, respectively. See also J Darpo Article 9.2 of the Aarhus Convention andEU Law. Some Remarks on CJEU’s Case Law on Access to Justice in Environmental Decision-making’(2014) 11 Journal of European Environmental and Planning Law 367—91.
• [4] Several of these directives have subsequently been codified or otherwise replaced by new legal acts.For this reason the names given in Annex I may not correspond to the current name of the relevant act.
• [5] Proposal for a Directive of the European Parliament and of the Council on access to justice inenvironmental matters (24 October 2003) COM(2003) 624 final.
• [6] 84 COM(2003) 624 final (n 83) 2-3.
• [7] For a more detailed discussion ofthe proposal see J Jans and H H B Vedder European EnvironmentalLaw After Lisbon (4th edn, Europa Law Publishing, 2011) 376.
• [8] 86 Case C-240/09 Lesoochranarske zoskupenie ECLI:EU:C:2011:125, paras 30 and 32.
• [9] Ibid, para 52.