EU LAW AND THE AARHUS CONVENTION: RECENT DEVELOPMENTS WITH A PARTICULAR FOCUS ON ENVIRONMENTAL IMPACT ASSESSMENT ADAM DANIEL NAGY, G OVERNANCE, I NFORMATION & R EPORTING (ENV.D.4) DG ENV

1. HISTORICAL PERSPECTIVE 2. THE EVOLUTION OF THE CASE - LAW AT EU LEVEL 3. RELATED TOPICS

1. H ISTORICAL PERSPECTIVE The spirit of the Aarhus Convention Case-law of the Court of Justice of the EU on access to justice in environmental matters Driving forces behind the case-law National trends and considerations of judges applying EU law

1. H ISTORICAL PERSPECTIVE Some preliminary considerations "The fish cannot go to court." AG Sharpston at the Trianel hearing "The environment cannot defend itself before a court, but needs to be represented, for example by active citizens or non-governmental organisations." AG Kokott AG Sharpston comparing courts to Ferraris in the Trianel-case, high quality, but accessible only to few.

1. H ISTORICAL PERSPECTIVE The Aarhus Convention and public participation in EU law Directive 2003/35 implements Articles 6 and 9 (2), 9(4), (5) of the Aarhus Convention into EU law Important instrument for ensuring public participation in environmental decision-making under EU law Provides for participation of the public in the drawing up of certain plans and programmes foreseen under EU law on certain matters (art. 7 of the Aarhus Convention); Improves public participation (Article 6 of the Aarhus Convention) and establishes access to justice, in relation to the authorization of environmentally significant projects amending : Directive 85 /337/EC (EIA directive) and Directive 96/61/EC (IPPC Directive)

1. H ISTORICAL PERSPECTIVE The Aarhus Convention and public participation in EU law - key notions in EIA competent authority or authorities means that authority or those authorities which the Member States designate as responsible for performing the duties arising from this Directive. public means one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups; public concerned means 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). For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.

1. H ISTORICAL PERSPECTIVE The Aarhus Convention and public participation in EU law A set of procedural requirements to be respected by authorities in relation to decision-making on environmentally significant projects Environmental consequences of EIA and IPPC projects are to be identified and assessed with the involvement of the public Early and effective participation of the public concerned, when all options are open, give enough time; Possibility for the public concerned to express its opinions, comments and to provide information before the final decision is taken; Outcome of public participation to be ‘taken into due account’ in final decisions;

1. H ISTORICAL PERSPECTIVE The Aarhus Convention and public participation in EU law – Recent modifications in the EIA Directive  Directive 2014/52/EU  Simplification of environmental assessment procedures  Changes on Aarhus-related provisions and also aiming to incorporate certain case-law developments  screening decisions should be taken in principle in 90 days and public consultations should last at least 30 days  final decisions shall be taken within a reasonable timeframe  Article 10a aiming at remedying by way of penalties for breaches of the Directive.

1. H ISTORICAL PERSPECTIVE The Aarhus Convention and access to justice Article 9 (1)-(5) Art 9 (2) - Access to justice in the context of public participation in delivering individual decisions (Article 6) -Standing for citizens and eNGOs -Effective (substantive and procedural) review of acts, decisions, omission in the environmental field -Remedies

1. H ISTORICAL PERSPECTIVE While guaranteeing procedures that are: -Effective -Timely -Fair and equitable -Remedies - including injunctive relief - made available – to avoid irreversible damages to the nature -Not prohibitively expensive

2. T HE EVOLUTION OF THE CASE LAW AT EU LEVEL Access to justice under Art. 9 (2), (4) C-427/07Commission vs. Ireland: justice C-263/08DLV: justice for NGOs (2000 members-too strict) C-115/09Trianel: justice for NGOs, based on public interest activity C-128/09Boxus C-182/10Solvay  C-416/10Krizan: interim relief C-420/11Leth; Wells (C-201/02), Case C-404/13 – effective remedies Edwards C-260/11 and C-530/11 Com vs UK: costs Altrip C-72/12 – scope of review Gruber C- 570/13 – standing to challenge negative screening decisions

2. T HE EVOLUTION OF THE CASE LAW AT EU LEVEL  Trianel-case (C-115/09):  Building of a coal-fired power-plant  Public participation during the permiting procedure  In DE law even an NGO needed to prove impairement of a right (shutznormtheorie)  the DE court asked whether the NGOs should have a privileged status based on EU law (EIA and IPPC Directives).

2. T HE EVOLUTION OF THE CASE LAW AT EU LEVEL At the occasion of the hearing of the case Advocate-General Eleanor Sharpston in her wisdom asked the following questions based on a situational exercise: Let us imagine two situations: First scenario: building of a power plant next to a river A Village in the vicinity of the planned construction Does anybody have standing? Answer: YES Second scenario: same power plant, but no villages nearby, in fact no inhabitants in a very large diameter Would anybody have standing? NO (in contradiction with Aarhus) Flaw in the German system, namely that there are situations, where nobody can challenge an omission, act or a decision affecting the environment.

 Injunctive relief Slovak case - Case C-416/10 on a Reference for a preliminary ruling from Najvyšší súd Slovenskej republiky (NSSR) Main facts of the case: Issues addressed: human rights vs environmental rights, injunctive relief, scope of Article 9 (4) 2. T HE EVOLUTION OF THE CASE LAW AT EU LEVEL

 Injunctive relief Problem: Permit for landfill site at Nova jama This was challenged due to its incomplete nature – no location of the site indicated A number of appeals at administrative and judicial level 1st instance court – Bratislava Regional Court 2nd instance court – Supreme Court 3rd instance – Constitutional Court, that referred back to the Supreme Court 2. T HE EVOLUTION OF THE CASE LAW AT EU LEVEL

 Findings of the CJEU  Injunctive relief as appropriate  No contradiction between fundamental rights and environmental protection  Location of site to be made publicly available 2. T HE EVOLUTION OF THE CASE LAW AT EU LEVEL

3. R ELATED TOPICS Shale gas and the EIA Directive (1) Annex I of the EIA Directive requires a mandatory EIA for shale gas projects where the amount of gas extracted exceeds m³ per day. In addition to this, there are a number of provisions that are relevant to exploration projects or exploitation projects below m³: the competent authority needs to make its determination [whether a project shall be made subject to an EIA] taking into account the results of other assessments (e.g. SEA) and state the main reasons for its decision

3. R ELATED TOPICS Shale gas and the EIA Directive (2) the developer needs to provide information, on the "whole project", the use of natural resources as well as how the criteria of Annex III have been taken into account; when making a determination on an Annex II project, the competent authority needs to take into account the following criteria – the size and design of the whole project, the risk of major accidents and/or disasters, the risk to human health, the underground and the cumulative impacts (Annex III). Furthermore, the existence of specific areas should be considered (e.g. Natura 2000 areas, densely populated areas…).

3. R ELATED TOPICS Thank you for your attention!