Jerzy Jendrośka Aarhus Convention and its Compliance Mechanism: Challenges in the implementation of the Aarhus Convention in light of the cases under its Compliance Committee Seminar “How to use the Aarhus Convention for the Protection of Space and Nature” Pula, 2-3 June, 2016 This seminar is part of the project “Increasing Transparency in Water and Space Management” financed by the EU and co-financed by the Croatian Government Office for NGOs Jerzy Jendrośka1

Jerzy Jendrośka Ph.D Managing Partner at Jendroska Jerzmański Bar and Partners. Environmental Lawyers Professor Adjunct, Opole University and European Law Academy, Trier Member of the Permanent Court of Arbitrage in the Hague Member of the Compliance Committee of the Aarhus Convention Member of the Implementation Committee of the Espoo Convention Jerzy Jendrośka2

Content Aarhus Convention – overview Aarhus Convention Compliance Mechanism Public participation pillar – Legal basis – Scope of obligations – Who is obliged – Who has rights – General rules – Public participation procedure Recent cases of the Compliance Committee – Access to information – Public participation – Access to justice Jerzy Jendrośka3

Aarhus Convention Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters – adopted and signed in Aarhus (Denmark) Maastricht Recommendations on Public Participation 2014 Aarhus Convention Implementation Guide 2000 and 2013 –Available online and in hard copies –C-182/10 Solvay and Others and C-279/12 Jerzy Jendrośka4

Jendrośka Jerzmański Bar i Wspólnicy; 5 Structure of the Convention Objective – right to environment (art. 1) Definitions (art. 2) General provisions (art. 3) Operative provisions – 3 pillars (art. 4-9) Meeting of the Parties (art.10) Compliance mechanism (art.15)

3 pillars Access to information – passive disclosure – Art. 4 – active disclosure – Art. 5 Public participation – decisions whether to permit specific activities „which may have a significant effect on the environment” - art 6 – GMO decisions – Art. 6 bis – plans/programs „relating to environment”– Art. 7 – policies „relating to environment” – Art. 7 – normative acts/legally binding rules „that may have a significant effect on the environment” – Art. 8 Access to justice – reddress in case of abusing right to information - art.9.1 – reddress in case of abusing right to participate - art.9.2 – separate right to file a public interest law suit - art.9.3 6Jerzy Jendrośka

7 Monitoring compliance mechanism Implementation reports Compliance Committee Compliance procedure

Jerzy Jendrośka8 Compliance Committee Nine independent members (eight before MoP-3 in 2008) Elected to serve in personal capacity Regional balance Nomination by MOP

Jerzy Jendrośka9 Compliance procedure - triggers Submission by Party about another Party (2 hitherto) Submission by Party about itself Referrals by secretariat Communications by the public Total of about regarding EU 2 regarding Croatia

Key issues Template for complaint Criteria for admissibility Exhaustion of domestic remedies Procedure – Hearing (possibility to be represented) – Draft findings available for comments – All documents publicly available Possibility for revision the findings after comments Follow-up Jerzy Jendrośka10

Types of non-compliance General failure by a Party to take the necessary legislative, regulatory and other measures timplement the Convention Failure of legislation, regulations, other measures or jurisprudence to meet specific Convention requirements Specific events, acts, omissions or situations demonstrating a failure by public authorities or courts to comply with (or enforce )the Convention Jerzy Jendrośka11

Legal effect Findings and recommendations of CC – Findings compliance or non-compliance – Recommendations steps to be taken Party concerned steps to be taken by MOP Adoption by MOP Measures – Declaration of non-compliance – Caution – Suspension of rights Jerzy Jendrośka12

Implications In relation to particular case – no retro-active effect – strategy to rectify situation to be adopted, submitted to CC, and implemented As a reference point for – implementing the Convention in legislation – interpreting the Convention in particular cases Jerzy Jendrośka13

Public participation pillar Decisions on individual activities/projects „which may have a significant effect on the environment” – Art. 6 GMO decisions – Art. 6 bis Plans/programs „relating to environment”– Art. 7 Policies „relating to environment” – Art. 7 Normative acts/legally binding rules „that may have a significant effect on the environment” – Art. 8 Jerzy Jendrośka14

Specific decisions – activities covered Art.6.1 a) - list of activities in Annex I – based on EIA Directive Annex I and IPPC Directive – any other activity subject to domestic EIA (point 20) Art. 6.1 b) - other activities „which may have a significant effect on environment” – language to cover EIA Directive Annex II projects – „Parties shall determine...” = screening Changes and extensions Reconsiderations and updates Jerzy Jendrośka15

Strategic decisions – art. 7 NOT only those subject to SEA! Strategic decisions covered by art.7: – Those which „may have a significant effect on the environment” and require SEA – Those which „may have a significant effect on the environment” but do not require SEA, for example: those that do not set framework for development consent – Those which „may have effect on the environment” but effect is not „significant”, for example: those that determine the use of small areas – Those aiming to help protecting the environment Jerzy Jendrośka16

EU Directives EIA Directive – art. 6 of the Aarhus Convention – Transboundary procedure under Espoo SEA Directive – art. 7 of the Aarhus Convention – Domestic and transboundary procedurę under SEA Directive Other Directives: IED/IPPC, Public Participation, Water Framework, GMO Directives, etc. Jerzy Jendrośka17

Scope of obligations Public participation and transparency – mandatory elements of EIA/SEA – but apply much broader than EIA/SEA! – EIA or SEA not always required with public participation Public participation and access to justice Jerzy Jendrośka18

Who is obliged Obligations related to access to information and public participation put on public authorities – Broad definition in Aarhus Convention – Public authority vs competent authority Possible delegation of tasks (see Maastricht Recommendations) Problems in countries with developers responsible for public participation in EIA Jerzy Jendrośka19

Who has rights Definitions from Aarhus – now included into other conventions and EU Directives Public – One or more – Natural or legal persons, and – their associations, organisations or groups (in accordance with national legislation or practice) Public concerned – Affected or likely to be affected, or – Having an interest – Including NGOs: Promoting environmental protection Meeting any requirements under national law Jerzy Jendrośka20

Public and public concerned Definitions from Aarhus – now included to other conventions Public – One or more – Natural or legal persons – in accordance with national legislation or practice, their associations, organisations or groups Public concerned – Affected or likely to be affected, or – Having an interest – Including NGOs: Promoting environmental protection Meeting any requirements under national law Jerzy Jendrośka21

Public concerned - key issues Obligation to identify public concerned Affected or likely to be affected – Relation to impact described in EIA/SEA documentation technical guidance with assumed range of impact – Criteria for identifying range of impact Not only routine impact but also impact related to accidents Approach to „having interests” – Not only legal or factual interets – Everyone who shows interest Jerzy Jendrośka22

General rule – „early public participation” Each Party shall provide for early public participation, when all options are open and effective public participation can take place” (Art.6.4) Does „early…when all options are open” – relates to sequence of decisions (Delena Wells case)? – relates to particular decision (scoping in EIA)? – both? Can public participation after construction is finished be considered „early” (ACC/C/17 – EC case) Relation to „tiered decision-making” Jerzy Jendrośka23

General rule – reasonable time-frames The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making” (Art.6.3) Phases – Notification – Inspection of relevant documents – Submission of comments – Consideration of comments (ACC/C/3 Ukraine) Fixed vs diversified time frames (CCC/C/16 Lithuania) Timing – traditional holiday season (ACC/C/24 Spain) Jerzy Jendrośka24

Reasonable timeframes -change of approach Approach – (original EIA Directive) „appropriate time limits for the various stages of the procedure in order to ensure that a decision is taken within a reasonable period” – (EIA Directive after Aarhus) „Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of this Article. Jerzy Jendrośka25

Public participation procedure Notification –art 6.2 Access to information – art.6.6 Possibility to submit comments – art.6.7 Due account taken of public comments – art.6.8 Decision taken notified and accessible to the public- art.6.9 Jerzy Jendrośka26

Notification (art.6.2) Public notice or individually (case C-15 Romania) Early in decision-making Content regulated in detail Manner: – Adequate – Timely – Effective Jerzy Jendrośka27

Notifying the public in EIA Directive Form – public notices or by other appropriate means such as electronic media where available, – bill posting within a certain radius – publication in local newspapers Detailed content of the notification Relation to art. 6 Aarhus Convention – public vs public concerned – timely, effective and adequate manner of informing Jerzy Jendrośka28

Mandatory form of notifying the public in Poland and Estonia Public notice – webpage - (in Public Information Bulletin) – notice board in the seat of competent authority – notice in the vicinity of project (bus stop, church, local shop etc) – press (local or national) Individual notification (letter) - to immediate neighbours Jerzy Jendrośka29

Mandatory form of notifying the public in UK On the webpage of competent authority By individual notice to interested persons By public notice -for at least two successive weeks in one or more local newspapers circulating in the vicinity in which the proposed development would be situated; -once in a national newspaper – -once in the London Gazette and, if land in Scotland is affected, the Edinburgh Gazette; and – -where the proposed application relates to offshore development -once in Lloyd’s List; and -once in an appropriate fishing trade journal. Jerzy Jendrośka30

Art making available relevant information Free of charge As soon as available Exemption from general rules on access to information under art.4 Relation to art 6.2 Jerzy Jendrośka31

Art content of relevant information All information relevant to decision-making – Description of site, efects and measures – Non-technical summary – Outline of main alternatives – Reports and advice Problematic issues – EIA Documentation and copyright (case ACC/C/15 Romania) – Raw data (ACC/53/UK) Exemptions – Confidentiality of proceedings (ACC/51/Romania) – Internal communications (ACC/51/Romania) Need for restrictive interpretation of exemptions and balancing of interests (ACC/51/Romania) Jerzy Jendrośka32

Possibility to submit comments – art.6.7 Two equal methods – In writing – In public hearing – as appropriate Any comments - no need to be motivated (ACC/C/16 Lithuania) Jerzy Jendrośka33

Due account– art.6.8 Due account must be taken of public comments – obligation to read and consider seriously – but not always to accept all comments Any comments vs „reasoned or motivated comments” Sufficient time for authorities to consider comments ((ACC/C/3 Ukraine ) Due account must be taken of public comments – obligation to read and consider seriously – but not always to accept all comments Any comments vs „reasoned or motivated comments” Sufficient time for authorities to consider comments ((ACC/C/3 Ukraine ) Jerzy Jendrośka34

Publicising the decision- art.6.9 Requirement – to notify the public promptly (ACC/C/8 Armenia) about the decision where it can be made available – to make it accesible to the public (ACC/C/3 Ukraine ) publicly accesible registers publicly accessible records of decisions Together with a statement on: – reasons – considerations Jerzy Jendrośka35

ACC cases - access to information Raw data as information - (ACC/53/UK) Exemptions – Confidentiality of proceedings (ACC/51/Romania) – Internal communications (ACC/51/Romania) Need for restrictive interpretation of exemptions and balancing of interests (ACC/51/Romania) Jerzy Jendrośka36

ACC cases - public participation EU responsibi;ity – Non-compliance - (ACC/54/EU) Irish NREAP – Who is responsible for failures - (ACC/70/Czech Republic) National Investment Plan under ETS Foreign public (ACC/71/Czech Republic) Temelin NPP – Public concerned –impact not only routine but also in case of accidents – Non-discrimination – equal opportunities to participate Participation of NGOs in advisory groups (ACC/51/Romania) Espoo and Aarhus (ACC/71/Czech Republic) Temelin NPP, Hinkley Point NPP cases Jerzy Jendrośka37

Jerzy Jendrośka38 ACC cases - access to justice Often problem with jurisprudence and not legislation Overview of cases – Art.9.1 – relatively rear (mostly timeliness) – Art Lack of access to justice in individual cases Lack of effective access to justice – Art general legislative failures – Art. 9.2 and 3 - criteria for standing for NGOs and some individual members of the public (tenants) – Art Costs Effective remedies Timeliness

CJEU and the Aarhus Convention Implementation Guide as source of interpretation (C- 182/10, Solvay and Others) Statement of reasons -must be prepared only if the interested party so requests (C-182/10, Solvay and Others) verdict controversial in light of art.6.9 of the Aarhus Convention Current tendency to restrictive interpretation of the concept of project vs art.6.10 (and case ACC/41/Slovak Republic) - physical change vs change in the environment and change in legal conditions) – Extension of consent for operation of the landfill ((C-121/11, Pro-Braine and Others) – Extension of consent for operation of the airport ((C-275/09, Brussels Hoofdstedelijk Gewest and Others,) Jerzy Jendrośka39