EROL MERTCAN RAPPORTEUR, SMALL GROUP OF LEGAL EXPERTS Revision of Article 9 by the Small Group of Legal Experts following WGD-6

Mandate of the Small Group of Legal Experts The mandate of the Small Group of Legal Experts (SGLE) following the sixth meeting of the Working Group on the Development of the Convention is set out in the Report distributed on 15 March That Report says at paragraph 32: Parties also agreed not to include reference to the Aarhus Convention and its principles, as proposed by the European Union, preferring to directly present and include relevant principles in the draft amended text. On that basis, the small group of legal experts was requested to review the text of proposed articles 9 and 9 bis, with a view to replacing the reference to the principles of articles 5 and 6 of the Aarhus Convention with text reflecting selected key principles extracted from those articles. The small group was also requested to improve the legal clarity of the text proposed by the European Union for a new article 9 bis, paragraph 3, to make the meaning of the reference to the principles outlined in article 9 more explicit. The new text should be ready for the Working Group’s review at its seventh meeting. (My emphasis).

The approach of the SGLE In accordance with its mandate the SGLE addressed itself to the following matters: Article 5 of the Aarhus Convention in relation to Article 9 Information to the public; Article 6 of the Aarhus Convention in relation to Article 9bis Public consultation and participation in decision-making. The SGLE was mindful of the need to ensure that: only key and essential principles are introduced; the principles are bespoke and appropriate to the Convention; any such principles are introduced in an economical way.

Article 9 Information to the public In relation to Article 9 and information to the public the missing key and essential principles were identified as: timeliness effectiveness transparency

Article 9 Information to the public: amendments The identified principles are reflected in paragraph 1 of the draft text, which states: The Parties [of origin] shall ensure that adequate information is given to the public in the areas capable of being affected by an industrial accident arising out of a hazardous activity. [Such information shall be provided in a timely and effective manner so as to ensure transparency.] This information shall: (a)Be transmitted through such channels as the Parties deem appropriate; (b)shall Include the elements contained in Annex VIII hereto; and should (c)Take into account matters set out in Annex V, paragraph 2, subparagraphs (1) to (4) and (9); (d)Without prejudice to Article 22 be easily accessible and preferably also be made available in electronic databases; (e)Be periodically reviewed and updated as necessary.

Article 9bis Public consultation and participation in decision making In relation to Article 9bis Public consultation and participation in decision-making the following missing principles were identified: opportunity to submit comments, information and analyses reasons for the decision

Article 9bis: amendments The identified principles are incorporated into paragraph 1 of Article 9bis, which now reads: The Party of origin shall, in accordance with the provisions of this Convention, give the public in the areas capable of being affected an early, adequate and effective opportunity to participate in relevant procedures with the aim of making known its views and concerns on prevention and preparedness measures. [The public shall be permitted to submit comments, information and analyses to the competent authority responsible for making the relevant decision at a time when all options in relation to that decision are open. The competent authority shall duly take into account the views and concerns expressed by the public in reaching its decision, and when the decision is taken the competent authority shall ensure that the public is promptly informed of the outcome of that decision together with its reasons.]

Article 9bis paragraph 3 The text of paragraph 3 at the end of WGD-6 needed some change to improve its clarity. It looked like this: During the consultation, Parties shall provide at least the information outlined in Article 9 (1) in accordance with the principles outlined in Article 9 (small group of legal experts to make more explicit the meaning).

Article 9bis paragraph 3: as amended The amended paragraph 3 now reads: The Parties shall ensure that consultation and public participation procedures established under this Article provide that the public in the areas capable of being affected is given at least the information referred to in Article 9 paragraph 1[, and also that the information is given in the manner established in that paragraph.]

Other work on text The SGLE has also done a small amount of tidying up of the text. This has consisted of small grammatical and editorial changes.

4 th April 2016 Thank you for your attention.