1. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission COOPERATION WITH NATIONAL JUDGES AND PROSECUTORS IN THE FIELD OF EU ENVIRONMENTAL LAW WORKSHOP ON EU LEGISLATION NATURE PROTECTION © 2010 Microsoft Corporation. All rights reserved. Access to justice in environmental matters

2. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 2 Access to justice and EU Law General principle – judicial control 222/84,15 mai 1986, Johnston / Chief Constable of the Royal Ulster Constabulary, Rec. p.1651, point 18: the requirement of judicial control (...) reflects a general principle of law which underlies the constitutional traditions common to the Member States. That principle is also laid down in articles 6 and 13 of the European Convention for the protection of human rights and fundamental freedoms of 4 november 1950. (…) and as the court has recognized in its decisions, the principles on which that convention is based must be taken into consideration in community law.

3. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Article 6 Lisbon Treaty (2) The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties. (3) Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law. Access to justice and EU Law (2)

4. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 4 Article 19 TUE 1. (…)Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. Access to justice and EU Law (3)

5. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 5 A special approach to environmental matters - Notion of «environmental governance» and the role of NGOs - It is necessary to protect the nature that cannot protect itself... - As AG Sharpston put it: The fish cannot go to Court.

6. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 6 The Aarhus Convention In 1998, Convention under the aegis of UN Economic Commission for Europe (UNECE) - (UN body, created in 1947 by ECOSOC, No. of members: 56 MSs, main aim: promote pan-European economic integration) In force since 2001 October 30 Three pillars - Access to environmental information -Public participation -Acces to justice -Application guide: http://www.unece.org/env/pp/guidancedocs.htmhttp://www.unece.org/env/pp/guidancedocs.htm

7. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 7 The Aarhus Convention is part of EU law - Ratification by the Community (all MSs, except for IE) in 2005 -2005/370/EC: Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters -Declaration of competence -Competence of EU and MSs, special status of Ireland Place of International Conventions in the European legal order - Etang de Berre-case, C-239/2003).

8. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 8 The implementation of the Convention through Community instruments - Directive 2003/4/CE on access to information - Directive 2003/35/CE on public participation (inserting access to justice rules in the Environmental Impact Assessment (EIA) Directive) - Regulation 1367/2006 for the Institutions - a Proposal for a Directive on access to justice in environmental matters of the European Parliament and of the Council [24 October 2003 COM(2003) 624COM(2003) 624

9. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 9 Access to justice in the Aarhus Convention: Article 9 of the Convention - Article 9§1: access to justice related to environmental information - Article 9§2: access to justice in case of public participation - Article 9§3: access to justice in general - Article 9§4: access to justice expressis verbis - Article 9§5: access to information instruments, and ensuring effective assistance mechanisms concerning access to justice

10. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Art 9 (2) (…)the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above. Art 9(3) (…) each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. Access to justice in environmental matters, some relevant articles of the Convention (1) 10

11. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 11 Art 9 (4) (…) the procedures (…) shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Art (5) (…) ensure (…) information is provided to the public on access to (…) review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice. Access to justice in environmental matters, some relevant articles of the Convention (2)

12. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 12 Access to justice linked to access to information Directive 2003/4/CE establishes the possibility of a judicial appeal - Article 6 of the Directive on access to justice Example of a jurisprudence: C-552/07, 17 février 2009, Azelvandre - Information on GMOs

13. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 13 Access to justice and public participation Directive 85/337/CE on environmental impact assessment (EIA) has been modified by directive 2003/35/CE - Separate article on access to justice (article 10 bis), - Scope: not only procedural but in a substantial sense as well

14. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 14 What about Article 9§3 of the Convention ? Proposal for a Directive - Not much of an enthousiasm from Member States - However, a preliminary reference on direct effect of 9 (3) made by a SK court How far is Art 9 (3) and access to justice applied in MSs? - Comparative Study on 25 Member States ordered by the Commission http://ec.europa.eu/environment/aarhus/study_access.htm http://ec.europa.eu/environment/aarhus/study_access.htm - Preliminary reference on direct effect of article 9(3) in the SK case, on-going, AG Sharpston delivered opinion stating that there is no direct effect (See opinion: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009C0240:EN:HTML)

15. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 15 Applicability of Articles 9 (2) and 9 (4)? Does article 9§4 have direct effect? - The formulation of the text is more precise. - Place of international conventions in the EU legal order (Etang de Berre-case). Role of Directive 2003/35 - examples of bad application - Sweden: NGOs - Ireland, costs of the procedures

16. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 16 ECJ – Competence to rule on different provisions of an international convention (1) R. & V. Haegeman, C-181/73 - An agreement concluded by the Council under (…) the Treaty is, as far as it concerns the Community, an act of one of the institutions of the Community (Summary p.1); - international agreements from the date it comes into force form an integral part of EU law (p. 5); - Court has jurisdiction to give preliminary rulings concerning the interpretation of this agreement (p.6).

17. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 17 ECJ – Competence to rule on different provisions of an international convention (2) Etang de Berre-case, C-213/03 – criteria of provisions with direct effect in international conventions - wording - purpose - nature of the agreement, - clear and precise obligation - not subject, in its implementation or effects, - to the adoption of any subsequent measure. (p.39)

18. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 18 The role of the Advocate General Swedish case C-263/08 (EIA), opinion of AG SHARPSTON - Opinion AG: the principle of effective judicial protection AG Kokott – C-427/07 (Ie case on prohibitive costs) - Stresses the role of Article 47 of the Charter of Fundamental Rights as a source of legal guidance, sheds light on the fundamental rights which are to be observed when interpreting Community law (p.92)

19. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 19 Latest developments - C-263/08 (1) Case C 263/08 on a reference for a preliminary ruling FACTS: -EIA, Directive 85/337, interpretation of Art 10a - Access to justice for organisations under the Directive and the Aarhus Convention - SV system barring access to justice from organisations that do not have at least 2000 members

20. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 20 Latest developments - C-263/08 (2) Members of the public concerned must be able to challenge an administrative decision before court regardless of their role played during the EIA related procedure (point 39). wide access to justice must be ensured and render effective the provisions of Directive 85/337 on judicial remedies (including NGOs). (p.45) Reference made to the the spirit of the directive which, as stated in paragraph 33 of this judgment, is intended to implement the Aarhus Convention. (point 51) It is against EU law to restrict standing solely to environmental protection associations which have at least 2 000 members.(Judgment - point 3)

21. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission Latest developments - C-427/07 (3) Case C-427/07, prohibitively expensive procedures Commission v Ireland; Courts findings: The mere discretionary practice of national courts to apply or not the loser pays principle is not compliant with the EIA directive (p.92-94) Information should be provided for the public in a structured manner in order to promote access to justice in environmental matters (p.96-97) 21

22. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 22 Nature and access to justice C 362/06 P (1) Action for annulment: The Court dismissed the appeal against order in case T­150/05 by which Court of First Instance (CFI) dismissed as unfounded (by a Finnish landowner called Sahlstedt in the name of several land owners) an action seeking annulment of the Commission's decision adopting the list of sites of Community importance for the Boreal biogeographical region (designation of Natura 2000 sites). The action for annulment was declared inadmissible due to lack of direct concern (CFI did not study the possible individual concern).

23. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 23 Nature and access to justice C 362/06 P (2) - Findings of the Court Against opinion of AG Bot effective judicial protection derives from the Community legal order; If no right under Art 263 (ex 230) to challenge directly Community measures, it must be guaranteed effectively by a right of action before the national courts; national courts duty: principle of cooperation in good faith (Art 4 (3) TEU) interpret and apply national procedural rules on rights of action for persons to plead the illegality EU acts and asking courts to make a reference to the ECJ Court of Justice for a preliminary ruling on legality

24. EU LEGISLATION ON NATURE PROTECTION 2011- European Commission 24 Discussion Have you encountered cases where it was necessary to set aside national law to apply Community law? What is your view on access to justice and the application of international law at national level?