The making of a New European legal culture: the Aarhus Convention

Roberto Caranta is Professor of Administrative law at Turin University. Anna Gerbrandy professor of Competition Law at the Europa Institute of Utrecht University School of Law, the Netherlands. Dr. Bilun Müller, LL.M. (Bruges) works at the Federal Ministry for Economic Affairs and Energy, Berlin.

Preface
Contents

Chapter 1 Introduction. The Making of a New European Legal Culture: The Aarhus Convention
Roberto Caranta, Anna Gerbrandy & Bilun Müller
1 The research question
2 The Aarhus Convention and legal culture
3 Working on the têtes de chapitre of administrative law
4 Structure of the book
5 The making of a new European legal culture?

Chapter 2 The Aarhus-Acquis in the EU. Developments in the Dynamics of Implementing the Three Pillars Structure
Adam Daniel Nagy
1 Introduction
2 First pillar: access to information
2.1 General framework of access to information at EU level
2.2 General framework of access to information at Member State level

2.3 The way forward
3 The second pillar: public participation
3.1 Public participation requirements at EU level, as applied by institutions and bodies
3.2 Public participation at Member State level based on EU law
3.3 Recent developments in public participation at EU and international levels
4 The third pillar: Access to justice in the EU and its Member States in general
4.1 Access to justice at EU level: the Aarhus Regulation
4.2 Access to information and its relation to access to justice at national level
4.3 Public participation and its relation to access to justice at Member States’ level
4.4 Access to justice under Article 9(3) and (4) of the Aarhus Convention: options for reforming EU law
4.5 Role of national judges – different forms of interpretation requirements to ensure compliance with EU law
5 Recent developments and trends – a political opening for further environmental governance?
5.1 Complementary alternatives to meet the requirements of the Aarhus Convention
6 Conclusions

Chapter 3 The Aarhus Convention – The Legal Cultural Picture. Country report for France
Giulia Parola, LL.M
1 Introduction
2 Right to access to documents/information
2.1 Before the implementation of the Aarhus convention
3 Implementation of access to environmental information
3.1 Subject matter of the right to access
3.2 The interaction of right of access with duties to make some information generally available and with Directive 2003/98/EC on the re-use of public sector information
3.3 User friendliness of the environmental information (Art. 5(2) AC)
3.4 Information held by some private law entities (e.g. concessionaires)
3.5 The exceptions to the right of access (with specific reference to the “confidentiality of the proceedings of public authorities”)
3.6 The costs for exercising the right to access
4 Public participation
4.1 Before the implementation of the Aarhus Convention
4.2 The implementation of participation rights granted by the Aarhus Convention
4.2.1 Different participation rules applicable to specific activities, plans, programs and policies, and normative instruments
4.2.2 Participation beyond defence and consultation, as negotiation or co-decision, and compensation mechanisms to avoid NIMBY and facilitate compromise
4.2.3 eNGOs participation rights (also considering Art. 7 – “public which may participate”)
4.2.4 A reasonable timeframe for the different phases
4.2.5 A comparison between the Aarhus convention requirements for participation and those of EU EIA and SEA
4.2.6 Taking into account the results of public participation
5 Access to courts
5.1 Pre-implementation
5.2 Implementation of the third pillar
5.2.1 Alternatives to court procedures
5.2.2 Standing, including of eNGOs
5.2.3 The review of “substantive and procedural legality” as required by Art. 9(2) of the Aarhus Convention
5.2.4 The remedies available
5.2.5 Time and costs of judicial remedies and legal aid
6 Conclusions

Chapter 4 The Aarhus Convention, The Legal Cultural Picture: Country Report for Germany
Bilun Müller
1 Introduction
2 The right to access to environmental information
2.1 Pre-implementation
2.1.1 The right to access to environmental information
2.1.2 Interaction of the right of access with duties to make some information generally available
2.1.3 The duty to provide information and private law entities
2.1.4 Influence of German legislation on the Aarhus Convention in the field of access to environmental information
2.2 Post-implementation
2.2.1 The right to access environmental information and the existing legal framework
2.2.2 Reactions to the implementation
2.2.3 EU law as an important instrument in easing the implementation of the Aarhus convention
2.2.4 The need for further reform
3 Participation rights
3.1 Pre-implementation
3.1.1 Including the public in decision making prior to the implementation of the Aarhus Convention
3.1.2 The influence of national legislation on the Aarhus Convention
3.2 Post-implementation
3.2.1 The right to public participation and the existing legal framework
3.2.2 Reactions to the amendments
3.2.3 Details of the participation procedures
3.2.4 The extent of participation in German law
3.2.5 The need for further reform
4 Access to the courts
4.1 Pre-implementation
4.1.1 The system of judicial review
4.1.2 Access to justice by environmental NGOs
4.1.3 Influence of national legislation on the Aarhus Convention
4.1.4 Compatibility of German law with Art 9 para 2 of the Aarhus Convention
4.2 Post-implementation
4.2.1 Openness of the existing legal framework for the right to access to the courts
4.2.2 Reactions to the new provisions
4.2.3 The need for further reform
5 Conclusion

Chapter 5 The Aarhus Convention: A Force for Change in Irish Environmental Law and Policy?
Áine Ryall
1 Introduction
2 Status of Aarhus Convention in Irish law
3 Access to environmental information
4 Public participation in environmental decision-making
5 Access to justice in environmental matters
5.1 Irish legislative measures aimed at implementing Aarhus obligations
5.2 Aarhus Convention in the Irish courts
6 Conclusions and future directions
7 Postscript

Chapter 6 The Application of the Aarhus Convention in Italy

Alessandro Comino
1 Introduction
2 Right to access to information
2.1 Anticipating and implementing Aarhus and the EU rules
2.2 The case law on the right of access
3 Participation
3.1 The general rules and their application to environmental cases
3.2 Participation in EIA and SEA procedures
4 Access to justice
4.1 Locus standi
4.2 The effectiveness of judicial review
4.3 Non-judicial proceedings
5 Conclusion

Chapter 7 The Aarhus Convention in the Netherlands Barbara Beijen
1 Introduction
2 Access to documents
2.1 Pre-implementation
2.2 Post-implementation
2.2.1 General remarks
2.2.2 Procedural changes
2.2.3 Substantive changes
2.2.4 Directive 2003/4
2.2.5 Future developments
3 Participation
3.1 Pre-implementation
3.2 Post-implementation
3.2.1 Permits
3.2.2 Plans and programmes
3.2.3 Future outlook
4 Access to courts
5 Conclusion

Chapter 8 Mimicking Environmental Transparency. The Implementation of the Aarhus Convention in Romania
Bogdana Neamtu & Dacian C. Dragos
Outline of the chapter
Reflection of the Aarhus Convention in the national legislation
1 Right of access to documents/information
1.1 Background
1.2 Scope of the right of access to information
1.3 Duty to make some information generally available
1.4 Format/manner in which environmental information is made generally available
1.5 Bodies having the duty to provide information
1.6 Exemptions from free access
1.7 Costs for exercising the right of access
2 Participation rights
2.1 Different participation rules applicable to activities, to plans, programs and policies, and to normative instruments
2.2 Purpose of participation
2.3 NGO participation
2.4 Timeframes for the different phases
2.5 Utilization of the outcome of public participation
3 Access to courts
3.1 Administrative appeal. Alternatives to court proceedings
3.2 Standing
3.3 Review by the courts
3.4 Remedies available
3.5 Effectiveness of judicial remedies; Legal aid
4 Discussion of the main findings
4.1 Pre-implementation
4.2 Post-implementation

Chapter 9 The Implementation and Influence of the Aarhus Convention in Spain
Jorge Agudo González
1 Introduction
2 First pillar: the right of access to information
2.1 The pre-implementation phase: Early and limited acknowledgement connected to a defensive approach
2.2 The post-implementation stage: Extensive development of this right through top-down influence
3 Second pillar: public participation rights
3.1 Pre-implementation phase: a legal tradition with long-standing practices
3.2 Post-implementation phase: a paradoxical implementation with steps forward and steps backward
3.2.1 Participation of the ‘public concerned’
3.2.2 Mode and scope of participation
3.2.3 Time frames for participation
3.2.4 Due account of the results of participation
4 Third pillar: access to justice
4.1 Pre-implementation phase: a long ‘journey’ towards the acknowledgement of a broad right of access to justice
4.2 Post-implementation phase: an unsatisfactory implementation which amounts to a regressive step
5 Final remarks

Chapter 10 United Kingdom
Carol Day
1 Access to environmental information
1.1 Introduction
1.2 Routinely publishable information
1.3 What does the public have the right of access to?
1.4 The definition of public authorities
1.5 How quickly must the information be provided?
1.6 Exemptions to disclosure
1.7 Scotland
1.8 What is in the public interest?
1.9 Partial refusal and redaction of documents
1.10 Appealing against refusals
1.11 Charging for environmental information
2 Participation rights
2.1 Introduction
2.2 The effect of the Aarhus Convention
2.3 Public participation in relation to specific activities (Article 6)
2.4 Third party right of appeal
2,5 GMOs
2.6 Public participation in relation to plans, programmes and policies relating to the environment (Article 7)
2.7 The town and country planning system
2.8 National infrastructure projects
2.9 Scotland
2.10 Opportunities for participation in relation to normative instruments (Article 8)
2.11 Are consultation processes effective?
2.12 Case-Law on consultations
2.13 The role of NGOs in decision-making
3 Access to environmental justice
3.1 Introduction
3.2 The System for decision-making and administrative appeals
3.3 Judicial review (JR)
3.4 Other routes to redress
3.5 Standing
3.6 Scotland and Northern Ireland
3.7 Standing for groups
3.8 The effectiveness of JR as a remedy – “substantive and procedural legality”
3.9 Costs in the environmental procedure
3.10 Court fees
3.11 Lawyers’ fees
3.11 Scotland and Northern Ireland
3.12 Cross undertakings in damages and injunctive relief
3.13 Legal Aid
3.14 Brexit implications

Chapter 11 Towards a Common European Legal Culture under the ‘First Pillar’ of the Aarhus Convention
Franziska Grashof
1 Introduction
2 The beginning: diversity in national legal rules and the legal culture on access to information
2.1 Sweden, the Netherlands and France: Rules on access to information and the legal culture of openness
2.2 Italy, the UK and Ireland: Some rules on access to environmental information and legal culture of secrecy
2.3 Germany and Spain: no rules on access to environmental information and legal culture of secrecy
2.4 Romania: Rules on access to information but legal culture of secrecy
2.5 Conclusion
3 The first step towards the creation of a common legal culture on access to environmental information: Directive 90/313/EEC
3.1 Sweden, the Netherlands and France: no significant changes in law and legal culture of openness
3.2 Italy, the UK and Ireland: broadening of legislation and enhancing the legal culture of openness
3.3 Germany and Spain: creation of rules on access to environmental information and break with the legal culture of secrecy
3.4 Romania: Even though not a Member State at the time, still enacting laws on access to information
3.5 Conclusion
4 The second step towards the creation of a common legal culture on access to environmental information: Aarhus Convention and Directive 2003/4/EC
4.1 The creation of the Aarhus Convention and Directive 2003/4/EC
4.2 The implementation of the rules of the Aarhus Convention and Directive 2003/4/EC
4.2.1 Sweden, the Netherlands and France: little change in the legal framework and the legal culture on access to environmental information
4.2.2 Italy, UK and Ireland: modifying rules and enhancing the legal culture on access to environmental information
4.2.3 Germany and Spain: modifying rules and enhancing the legal culture on access to environmental information
4.2.4 Romania: modifying rules but only modest impact on the legal culture on access to environmental information
4.2.5 Conclusion
5 A legal culture of openness at the Union level?
6 Conclusion: Has a common European legal culture developed under the ‘first pillar’ of the Aarhus Convention?

Chapter 12 The Second Pillar of the Aarhus Convention and Beyond. Comparative Analysis of the Implementing Systems Vis-À-Vis their Legal Culture
Margherita Poto
1 Introductory remarks
2 A participatory Convention and the threefold shift in mentality: political, diplomatic and legal
2.1 The political shift
2.2 The shift in diplomatic relations
2.3 The legal shift
3 The Aarhus Convention Compliance: internal mechanisms and national outputs
3.1 The Compliance Committee: a new participatory approach to monitor compliance
3.2 The European Union: a good level of compliance due to the legal tradition
3.3 The National Reports
3.3.1 Comparative data
3.3.2 United Kingdom: participation and political interests take it in turns
3.3.3 Southern Europe: individualism and centralisation as obstacles to substantial change
3.3.4 France: participatory rights in the tissue of representative democracy
3.3.5 Germany: talking the talk and (not always) walking the walk
3.3.6 The Dutch consensus culture: a stagnant “polder model”?
3.3.7 Ireland: a lukewarm reception of the AC
3.3.8 Romania: an initial acceleration followed by a sharp slowdown
3.3.9 Recommendations for the “not-fully compliant” countries
4 Reasons behind the delayed or poor compliance
4.1 Endogenous factors
5 Conclusion and way forward

Chapter 13 Access to Justice under the Aarhus Convention: the Comparative View
Dacian C. Dragos, Bogdana Neamtu
1 Introduction
2 Systems of remedies in different jurisdictions
3 Standing
3.1 Individual standing
3.2 Standing for NGOs, groups and actio popularis
4 The intensity and scope of the review
5 Injunctive relief, damages
6 Costs
7 Conclusions: a mixed picture in need of unity?

Chapter 14 Environmental NGOs (eNGOs) or: Filling the Gap between the State and the Individual under the Aarhus Convention
Roberto Caranta
1 Introduction.
2 The eNGOs in the Aarhus Convention.
3 Environmental NGOs and EU law
3.1 Rules applicable to the EU institutions
3.1 Rules applicable to the public authorities of the Member States
4 The role of eNGOs in selected Member States
5 Comparative conclusions

Chapter 15 The Impact of the Convention of Aarhus on the Emerging European Legal Culture
Anna Gerbrandy & Laurens van Kreij
1 Introduction
2 European legal culture
3 The legal culture of the Aarhus Convention
4 The Aarhus Convention’s influence on European legal culture
4.1 Transparency
4.2 Public Participation
4.3 Effectiveness through environmental justice
5 Conclusion

Table of Cases
Index