The international Aarhus Convention was concluded by both the European Union and its member states ('mixed agreement'). The convention lays down procedural safeguards in environmental decision-making processes. The Aarhus Convention consists of three pillars:
- access to environmental information;
- public participation in decisions; and
- access to justice.
The third pillar of the Aarhus Convention establishes a general right to bring a case before the courts if national environmental regulations might be subject to contravention. The stated aim of the convention is to give the public wide access to justice.
In particular, the implementation of the 'access to justice' pillar has caused debates. In July 2014 the European Commission initiated infringement proceedings against Austria. Given the fact that the European Union has not fulfilled its own primary obligation of establishing a suitable implementation concept, the suit is questionable.
According to the European Commission, access to justice in Austria is fully implemented in procedures that fall under the EU Environmental Impact Assessment Directive or the EU Integrated Pollution Prevention and Control Directive. However, in a range of environment-related laws (eg, the Water Act, the Waste Management Act, the Emission Control Act and the Nature Protection Act), access to justice seems to be insufficient. Within the scope of these regulations, environmental non-governmental organisations (NGOs) and individuals have no right to bring sensitive environmental cases before the courts. Therefore, in the opinion of the European Commission, these laws do not fully comply with the third pillar of the Aarhus Convention.
The European Commission's view does not acknowledge the fact that legal protection in Austria is already highly developed and grants more procedural rights than most other jurisdictions. Individuals have many subjective rights that are enforceable in court in case of violation. Many formal parties (eg, NGOs, municipalities, the Environment Ombudsman and the Citizens' Initiative) have the right to enforce environmental protection law. In addition, the Environmental Impact Assessment Act – the most important infrastructural procedural law – has already been widely adapted to the third pillar of the Aarhus Convention.
The core problem in implementing the third pillar in Austria lies in the fact that the European Union has not yet issued a directive in this regard. The settled case law of the European Court of Justice and the Austrian Supreme Administrative Court is that the third pillar of the Aarhus Convention does not directly apply. Since the Aarhus Convention is a mixed agreement, the European Union is primarily responsible for implementing the agreement at the EU level in order to achieve harmonised standards in member states. Subsequently, member states are obliged to adapt their national laws to the European regulatory stipulations. The European Union has dismissed its first draft of an access to justice directive. A revised draft is under way.
Another difficulty which is closely linked to the abovementioned problem is that the Aarhus Convention is derived from common law. Therefore, its regulations are difficult to reconcile with the civil law system which is predominant in most European countries. This applies particularly to the implementation of access to justice.
Further, the fact that the convention does not specify the terms and conditions under which suits can be filed is another challenge. The convention provides only the legal framework. The exact scope of legal protection – particularly the prerequisites for taking legal action – is left to the parties of the convention. The convention also fails to define the cases in which access to justice should be granted.
The enforcement of individual subjective rights and environmental protection law has had a long tradition in Austrian procedural law. As the national legal protection system differs significantly from the concept of the Aarhus Convention, the implementation process has been challenging. Nevertheless, Austria has managed to implement the third pillar in the Environmental Impact Assessment Directive (under which the most controversial projects are usually negotiated) and the Integrated Pollution Prevention and Control Directive.
In regard to the lack of implementation in other environment-related procedural laws, again the long-awaited EU directive is needed. The third pillar offers only poor guidelines for implementation; member states need specific and precise instructions from the European Commission in order to implement the third pillar in a harmonised and correct way. Without specific instructions, Austria might risk another infringement procedure. Whether the European Commission's new draft will provide more clarity remains to be seen.
For further information on this topic please contact Christian Schmelz or Sandra Schönbäck at Schoenherr Rechtsanwälte by telephone (+43 1 5343 70) or email (firstname.lastname@example.org or email@example.com). The Schoenherr Rechtsanwälte website can be accessed at www.schoenherr.eu.
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