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Prof. Jan H. Jans EU and Aarhus Jurisdictional Cmpetition?

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Presentation on theme: "Prof. Jan H. Jans EU and Aarhus Jurisdictional Cmpetition?"— Presentation transcript:

1 Prof. Jan H. Jans EU and Aarhus Jurisdictional Cmpetition?

2 EU and Aarhus ›So called ‘Mixed Treaty’ ›Binding on the EC and Member States ›Regulation 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies ›Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment

3 Three Perspectives ›Acccess to justice in internal EU affairs ›The implementation of Aarhus principles in the Member States via EC law ›The possible direct effect of the Aarhus Convention in the EU Members States

4 Acccess to Justice in Internal EU Affairs ›Greenpeace is still alive Root of the problem: direct and individual concerned (Art. 230 EC) Greenpeace case Paraquat case; T-94/04 Sahlstedt case C-362/06P Slight improvement after Lisbon? ‘and against a regulatory act which is of direct concern to them and does not entail implementing measures’ ›Baron von Munchausen does not exist Internal review and access to justice according to Regulation 1367/2006? Paraquat case once again and recently C-355/08 P.

5 Implementation of Aarhus in the Member States via EC Law ›Via Directive 2003/35 Article 1 : The objective of this Directive is to contribute to the implementation of the obligations arising under the Aarhus Convention IPPC and EIA Directives have to be interpreted Aarhus-proof/conform Jurisdictional competition between the ECJ and the Aarhus Compliance Committee

6 Some Problematic Cases ›Irish cases on costs planning fee; C-216/05 C-427/07 ‘only the costs arising from participation’, ‘loser pays’ is allowed, but no discretionary practices from the courts ›Participation for ‘the public (concerned)’? ›‘Sufficient’ or ‘substantial’ interests? Case C-427/07 ›Numeric criteria for NGOs? Swedish DLV case C-238/08 ›Legality Review and healing; Dutch Crisis and Recovery Act ›Protective Rule requirements German case C-115/09, pending New Dutch legislation ›Duty to give reasons; Mellor case C-75/08 ›Access to Justice for Art. 1(5) EIA projects? Belgian case C-177/09

7 Possible Direct Effect of Aarhus ›Questions asked by Slovakian court in C-240/09 ›Is the ruling in C-213/03 Pêcheurs de l ’é tang de Berre applicable by analogy? ›Problem: The European Community 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 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.

8 Direct Effect of Directive 2003/35? ›Covers IPPC and EIA only ›But not, for instance, nature conservation Voluntary spill over effects? ›Kraaijeveld & Waddenzee doctrine Direct effect possible in judicial review of Member State discretion exercised under Directive 2003/35 Examples: costs, numeric criteria, protective rule requirement, etc. In C-427/07: ‘the obligation to make available to the public practical information on access to administrative and judicial review procedures’ ‘amounts to an obligation to obtain a precise result’

9 Thank you for your attention

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