Reading
13 January 2022
11:33
5. Public participatory rights
Aarhus Convention adopted on June 25th, 1998.
Three pillars:
1. access to information
2. public participation in decision-making
3. access to justice in environmental matters
EU has adopted legislation reflecting the three pillars which applies to the MSs and to the EU
institutions
Secondary law = Directive 2003/4 on public access to environmental information and
directive 2003/35 on public participation
Implementation 3rd pillar left to MSs
Implementation of the Aarhus Convention in the EU member states
Principle of proportionality important
Directives do not go beyond what is necessary to adhere to the Aarhus Convention
Principle of proportionality and principle of subsidiarity protect MSs’ power
Has little calling to the obligations as applied by the institution as MSs have no power to
interfere in how the Union institutions themselves carry out obligations under the
convention
Access to environmental information
Overall objectives: (1) to guarantee the right of access to environmental information held by
or for public authorities (“passive transparency”) and (2) to ensure that environmental
information is made public (“active transparency”)
Public participation
Reasonable timeframes for every step of the participation process and detailed
arrangements have to be given
There are several exceptions such as plans which serve national defence
The Union has established several tools such as the online platform “Your Voice”
Access to justice
The regulation of general access to justice to MSs institutions is in the competence of MSs
only
Exceptions: access to justice within the EIA, provisions included in the SEA or IE directive
Case law Edwards: the ECJ held that the costs of proceedings must neither exceed the
financial resources of the person concerned no appear, in any event, to be objectively
unreasonable
o National court must take into account the situation of the parties concerned,
whether the claimant has a reasonable prospect of success, the importance of what
is at stake for the claimant and for the protection of the environment, the complexity
of relevant law and procedure and the potentially frivolous nature of the claim
o Commission v UK it was not apparent that national courts are obliged by a rule of law
to ensure that the proceedings are not prohibitively expensive for the claimant
, 7. environmental and strategic impact
assessment
Environmental impact assessment (EIA)
Based on the principle that development consent for public and private projects which are
likely to have significant effects on the environment should be granted only after an
assessment of the likely significant environmental effects of those projects has been carried
out
o Project = the execution of construction works or of other installations or schemes, as
well as other interventions in the natural surroundings and landscape including those
involving the extraction of mineral resources
o Public = one or more natural or legal persons and, in accordance with national
legislation or practice, associations, organisations or groups
o Public concerned = the public affected or likely to be affected by, or having an
interest in, the environmental decision-making procedures referred to in article 2(2)
Principles: precaution, prevention, rectification at source and polluter-pay-principle
General procedure:
Definition EIA: the process of…
Splitting of projects, incremental projects, cumulative assessment
Projects may not be split to circumvent the purpose of the Directive and the cumulative
effects and impacts of several projects
13 January 2022
11:33
5. Public participatory rights
Aarhus Convention adopted on June 25th, 1998.
Three pillars:
1. access to information
2. public participation in decision-making
3. access to justice in environmental matters
EU has adopted legislation reflecting the three pillars which applies to the MSs and to the EU
institutions
Secondary law = Directive 2003/4 on public access to environmental information and
directive 2003/35 on public participation
Implementation 3rd pillar left to MSs
Implementation of the Aarhus Convention in the EU member states
Principle of proportionality important
Directives do not go beyond what is necessary to adhere to the Aarhus Convention
Principle of proportionality and principle of subsidiarity protect MSs’ power
Has little calling to the obligations as applied by the institution as MSs have no power to
interfere in how the Union institutions themselves carry out obligations under the
convention
Access to environmental information
Overall objectives: (1) to guarantee the right of access to environmental information held by
or for public authorities (“passive transparency”) and (2) to ensure that environmental
information is made public (“active transparency”)
Public participation
Reasonable timeframes for every step of the participation process and detailed
arrangements have to be given
There are several exceptions such as plans which serve national defence
The Union has established several tools such as the online platform “Your Voice”
Access to justice
The regulation of general access to justice to MSs institutions is in the competence of MSs
only
Exceptions: access to justice within the EIA, provisions included in the SEA or IE directive
Case law Edwards: the ECJ held that the costs of proceedings must neither exceed the
financial resources of the person concerned no appear, in any event, to be objectively
unreasonable
o National court must take into account the situation of the parties concerned,
whether the claimant has a reasonable prospect of success, the importance of what
is at stake for the claimant and for the protection of the environment, the complexity
of relevant law and procedure and the potentially frivolous nature of the claim
o Commission v UK it was not apparent that national courts are obliged by a rule of law
to ensure that the proceedings are not prohibitively expensive for the claimant
, 7. environmental and strategic impact
assessment
Environmental impact assessment (EIA)
Based on the principle that development consent for public and private projects which are
likely to have significant effects on the environment should be granted only after an
assessment of the likely significant environmental effects of those projects has been carried
out
o Project = the execution of construction works or of other installations or schemes, as
well as other interventions in the natural surroundings and landscape including those
involving the extraction of mineral resources
o Public = one or more natural or legal persons and, in accordance with national
legislation or practice, associations, organisations or groups
o Public concerned = the public affected or likely to be affected by, or having an
interest in, the environmental decision-making procedures referred to in article 2(2)
Principles: precaution, prevention, rectification at source and polluter-pay-principle
General procedure:
Definition EIA: the process of…
Splitting of projects, incremental projects, cumulative assessment
Projects may not be split to circumvent the purpose of the Directive and the cumulative
effects and impacts of several projects
