Participatory Rights in the Environmental Decision-Making Process and the Implementation of the Aarhus Convention: a Comparative Perspective [1 ed.] 9783428546138, 9783428146130

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Schriften zum Internationalen Recht Band 205

Participatory Rights in the Environmental Decision-Making Process and the Implementation of the Aarhus Convention: a Comparative Perspective Edited by

Eva Julia Lohse and Margherita Poto In Cooperation with Giulia Parola

Duncker & Humblot · Berlin

EVA JULIA LOHSE / MARGHERITA POTO (Eds.)

Participatory Rights in the Environmental Decision-Making Process and the Implementation of the Aarhus Convention: a Comparative Perspective

Schriften zum Internationalen Recht Band 205

Participatory Rights in the Environmental Decision-Making Process and the Implementation of the Aarhus Convention: a Comparative Perspective Edited by

Eva Julia Lohse and Margherita Poto In Cooperation with Giulia Parola

Duncker & Humblot · Berlin

Diese Publikation wurde gefördert vom DAAD aus Mitteln des Bundesministeriums für Bildung und Forschung (BMBF)

Bibliographic information of the German national library The German national library registers this publication in the German national bibliography; specified bibliographic data are retrievable on the Internet about http://dnb.d-nb.de.

All rights reserved. No part of this book may be reproduced, translated, or utilized in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. © 2015 Duncker & Humblot GmbH, Berlin Typesetting: Konrad Triltsch GmbH, Ochsenfurt Printing: buchbücher.de gmbh, Birkach Printed in Germany ISSN 0720-7646 ISBN 978-3-428-14613-0 (Print) ISBN 978-3-428-54613-8 (E-Book) ISBN 978-3-428-84613-9 (Print & E-Book) Printed on no aging resistant (non-acid) paper according to ISO 9706

Internet: http://www.duncker-humblot.de

To Our Daughters and the Children of the World

Table of Contents Eva Julia Lohse, Giulia Parola and Margherita Poto Introductory Remarks on the Idea and the Purpose of a German-Italian Dialogue on Participation in Environmental Decision-Making . . . . . . . . . . . . . . . . . . . . . .

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Part I Perspectives on Participation – Rationales, Protected Interests, Democracy Giulia Parola Ecological Interest as a Leading Rationale for Participation: Ecological Duties of the Citizens and of the Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Cristina Fraenkel-Haeberle Participatory Democracy and the Global Approach in Environmental Legislation

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Claudia Sartoretti The Aarhus Convention Between Protection of Human Rights and Protection of the Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Paolo Turrini Participatory Rights and the Notion of Interest in Environmental Decision-making: a Theoretical Sketch and Some International Legal Considerations . . . . .

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Federica Cittadino Public Interest to Environmental Protection and Indigenous Peoples’ Rights: Procedural Rights to Participation and Substantive Guarantees . . . . . . . . . . . . . .

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Part II Participation in Administrative Decision-making: Prerequisites and Principles in National and Supranational Law Margherita Poto Strengths and Weaknesses of Environmental Participation Under the Aarhus Convention: What Lies Beyond Rhetorical Proceduralisation? . . . . . . . . . . . . . .

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Table of Contents

Viviana Molaschi The Implementation of the Aarhus Convention in Italy: a Strong ‘Vision’ and a Weak ‘Voice’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Julian Zwicker and Franziska Sperfeld Participation of Environmental Associations in the Context of Nature Conservation Law in Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Nicola Below Participation Under REACH – Stakeholder Interests and Implementation of EU Secondary Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Part III Participation Through Access to Justice – Conditions and Concepts of Judiciary Participation Eva Julia Lohse Access to Justice – the Main Challenge for Implementing the Aarhus Convention 159 Angela Schwerdtfeger Implementation and the Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Elena Fasoli The German Criteria for Access to Justice Under the Scrutiny of the Aarhus Convention Compliance Committee and of the Court of Justice of the European Union: Is There Room for Similar Proceedings Against Italy? . . . . . . . . . . . . . . 189 Bilun Müller The Effect of the Aarhus Convention’s Right of Access to the Courts in Germany 203 Ulrike Giera Attorneys for the Environment – an Effective Implementation of Art. 9 (3) Aarhus Convention? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Part IV An Example for Best Practises in Environmental Participation Stefano Duglio, Maria Beatrice Pairotti and Riccardo Beltramo Environmental Management: the Environmentally Equipped Industrial Area Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 Eva Julia Lohse Comparative Conclusions from a German–Italian Dialogue on Participation . . . 251 List of Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

Introductory Remarks on the Idea and the Purpose of a German-Italian Dialogue on Participation in Environmental Decision-Making By Eva Julia Lohse, Giulia Parola and Margherita Poto Earth Democracy is a shift from anthropocentrism to ecocentrism. And since we all depend on the Earth, Earth Democracy translates into human rights to food and water, to freedom from hunger and thirst. Vandana Shiva, Earth Democracy

I. Scientific Background of the Project Our project on Participatory rights in the environmental decision-making process and the implementation of the Aarhus Convention aimed to provide a comparative overview of the implementation of the Aarhus Convention (AC) on participatory rights in the environmental decision-making processes. The core idea was to explore the legal cultures of various EU member states, where the AC principles have been implemented in national law with a special focus on the participatory rights in German and Italian environmental law. The AC can be seen as the litmus test of economic and political revolutions, having triggered shifts in mentality in the administrative decision-making process in environmental law. These changes have a twofold impact on the legal systems at stake: firstly, they certainly contributed to the expansion of public participation in all phases of the decision-making process (mainly in Italy); secondly, they ran the risk of restricting the procedural autonomy of the Member States (mainly in Germany) on the basis of an excessively interpreted principle of effectiveness (art. 4 (3) Treaty establishing the European Union). The project has scrutinised a few of these interrelations, in line with the following structure: (1) First, a comparative study on the differences and similarities in the German and Italian administrative procedures and court proceedings (especially regarding the access to courts, subjective/individual rights, third parties in administrative proceedings); (2) Second, a scrutiny of the connection between the participatory achievements and the awareness of a common ecological interest;

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(3) Third, the intricacies of participatory democracy and multi-level entities such as an international Convention, a supra-national organisation as a signatory and its Member States as co-signatories. As regards participatory rights, the analysis of the compliance of the Italian and the German legal systems has followed a matrix of questions. – Are there differences in the application of the rules on public participation applicable respectively to specific activities (art. 6 AC), to plans, programs and policies (art. 7 AC), and to normative instruments (art. 8 AC)? – Is participation going beyond defence and consultation, and leading up to negotiation or co-decision? – Are participatory rights given to NGOs in the same manner as to individuals (also considering art. 7 AC – “public which may participate” – and art. 9 AC)? – What is considered a reasonable timeframe for the different phases (art. (3) AC)? – Are the requirements for participation in the AC considered the same as with the Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA) introduced by the European Union (EU) directives or existent in national law? If not, how are differences dealt with? – In connection with access to justice, what is meant by “due account is taken of the outcome of public participation” (art. 6 (8) AC) and what are considered to be sufficient “reasons and considerations” (art. 6 (9) AC)? As a starting point for the comparison, the situation 1) pre-, and 2) post-implementation of the AC was considered. The difficulty in effectively implementing the participatory rights derives from the absence of a clear definition of substantive environmental rights. This Achilles’ heel of the AC has been pointed out by legal research. The lack of substantive environmental rights has been defined as a practical obstacle impinging on its commitment to human rights, as it arguably reduces the scope for public deliberation on the appropriateness of environmental decision-making according to competing social values. It is therefore important to define characteristics or elements of substantive environmental rights. Their established connection to fundamental rights of the human being as endorsed in national and international codifications of human rights should be a starting point. Yet, clearly environmental rights have to encompass further elements, such as sustainability and care for future generations but also collective rights and the protection of common goods that can hardly be expressed by individual human rights. Therefore, the project has scrutinised where and to what extent the implementation measures establish the legal protection of such rights and interests, especially by the introduction of participatory rights for the common good. In conclusion, there have been ups and downs in implementation of the AC over time. So far, however, the resulting legislation does not seem to have led to structural changes, which could

Introductory Remarks

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have a significant impact on environmental policies and, most of all, which could give substance to environmental rights. Placing the Earth as the core object of the investigation, a shift to ecocentrism is needed, where the ‘ecological interest’ has to stand out as a fundamental right of the individuals. Our project, with the debate followed by the present publication, aims to contribute to the knowledge of whether the European Union is on the right way to establish such an approach.

II. Success and Outcome of the Project The success of this project lies in the wish that a research group led by young (mostly female) legal researchers can trigger a shift in mentality on environmental participation. The research group was formed by legal scholars, young in age or in spirit, practitioners, economists, philosophers and a theologian from different countries of the EU. Our idea was generously supported by the Deutsche Akademische Austauschdienst (DAAD), that believed in our potential to build up a network of scholars and practitioners willing to explore the environmental consciousness flourishing after the AC entered into force, and therefore to contribute to its programme of Deutsch-Italienische Dialoge. And a dialogue it was indeed. The importance of a participatory approach was dual, since it found its own dimension both as main objective of the project (environmental participation) and as the methodology applied to reach the objective itself (a German-Italian dialogue open to third interlocutors). The importance of environmental participation is grounded on some key aspects: (1) The dialoguing parties all agree upon the core idea that deep reflections on the importance to grant a wide environmental participation are of great benefit for the Earth. (2) A serious commitment to constitute a task force of young researchers on environmental protection is urgently needed. (3) All the efforts undertaken toward an effective shift to ecocentrism in the global scenario shall be strengthened and encouraged. Alongside our commitment to environmental legal studies, we wish that this project, with a conference and a collection of proceedings, is only the starting point of a long-term cooperation between academic institutions, free thinkers, scholars and third parties. Our heartfelt gratitude goes to all the people who believed in our idea and decided to be part of the dialogue, as supporters and interlocutors.

Part I Perspectives on Participation – Rationales, Protected Interests, Democracy

Ecological Interest as a Leading Rationale for Participation: Ecological Duties of the Citizens and of the Authorities By Giulia Parola Abstract Our age is characterised by a global ecological crisis and humanity is both the cause and the victim of environmental degradation. The following contribution suggests the introduction of Ecological Duties at international and local level to modifying human behaviour towards environmentally benign practices. Law can be an important tool since it can create legal frameworks not just for environmental rights but also for ecological duties, which lead each individual as a citizen of social and ecological communities to become aware of the incredibly powerful role they can have in this crisis.

I. Introduction States seem to progressively realise that they cannot create green societies on their own, but that they have to recognise a role for civil society in the process of achieving environmental objectives. Hence, achieving ecological aims requires a process of democratisation through participation, taking into account that economic transformations, scientific-technological progress and daily life changes will not be enough. In most green political theories, citizens’ participation in the environmental decision-making process is essential. In particular, stress is placed on the rights of access to information, participation and access to justice, as well as on democratic models.1 Moreover, obligations vis-à-vis the planet and future generations are also emphasised.2 From this perspective, almost all the contributions in this volume deal mainly with the environmental citizen and her/his corresponding substantive and procedural environmental rights. My study will rather focus on the ecological duties that have not fully developed yet from a legal perspective.

1 The starting point of all green political theories, in all their organisational and ideological diversity, concerns proposals of an alternative to the liberal-democratic representative system. Much work has explored the relationship between democracy and ecology: Eckersley, The Green State; Mason; Howard, p. 34; Eckersley Ecofeminism, p. 52; Jasanoff, p. 2; Parola. 2 Melo-Escrihuela, p. 113.

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In fact, duties are easily conceptualised in ethical terms based upon arguments of political philosophy rather than upon legal terms. Nevertheless, the purpose of this article is to try to move on from this construction of duty towards a legal approach and for this reason it is useful to introduce the concept of the Ecological Interest. For a long time, the primary task of the State has been to achieve and maintain the common interest. Hereunder fall the welfare of one State’s population and the State’s economic development. But since the humanity have to face the ecological crisis, it can be argued that a reference to common interest is as well comprising the survival of Earth and consequently of humankind as such. Thus, the Ecological interest is the interest of the survival of the Planet. Moreover, the Ecological Interest includes two fundamental aspects: Ecological duties of the citizens towards the Planet as a continuum of responsible actions towards all forms of life, including non-human life and include not only the obligation to comply with environmental laws but also to participate; and Ecological duties of the Authorities (supra-national, national, regional or local) towards the Planet as a set of obligations to establish a new regulatory model for protecting all forms of life, including non-human life. The legal doctrine has recently started to take into account this duty approach. An example is the article published by Boutonnet in June 20143 on “La consécration du concept d’obligation environnementale”. She introduces the concept of “l’obligation environnementale” that can be easily compared to the concept of ‘Ecological Interest’. This concept “désigne l’ensemble des devoirs destinés à intégrer la données environnementale soit dans une finalité de gestion du risque environnemental dans l’intérêt des parties ou du marché soit ans une finalité de protection de l’environnent dans l’intérêt collectif”.4 The following contribution has been divided into three parts: firstly it will be explained how participation in environmental matters can bring a new ecological awareness and responsibility; secondly it will be studied what the ecological duty is and a definition on the two principal ecological duties will be provided; finally, the contribution will be focused on the implementations of the ecological duties in the Aarhus Convention (AC)5 and in the Members States.

3

See also Maljean-Dubois; Parance, p. 647; Jégouzo, p. 1164. Moreover, she divides the obligations in two categories, firstly there is “obligations environnementale subjectives […] [qui] intègrent la donnée environnementale dans un souci premier de préservation des intérêts des sujets de droit”, in other words when the environment is not directly protected, for instance the duty of the Authorities to give information to the public in environmental matters. On the other side there is “obligations environnementales objectives” that protect directly the environment, an example is the duty to protect the Nature. 5 Fully titled “The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters”. 4

Ecological Interest as a Leading Rationale for Participation

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II. Environmental Participation to an Ecological Responsibility The most important role played by citizens and recognised by laws in environmental protection is participation in the decision-making process, which may be both political and administrative. The origin of public participation is “the right of those who may be affected, including foreign citizens and residents, to have a say in the determination of their environmental future”.6 Public participation processes have been emerging in the policies and environmental regulations of some States since the late 1960s and 1970s.7 This phenomenon coincided with political disturbances around the world when civil society started to ask for more democratic governance and environmental protection. From the period of the 1970s to the early 1980s, doctrine and critics have highlighted the importance of citizens to achieve economic development in an environmental manner.8 Consequently, during the 1990s, consultation and participation turned into the buzzwords of environmental decision-making, feeding into broader discourses on “good governance”9 “environmental justice” and “environmental citizenship”.10 Today the involvement of citizens in environmental decision-making processes has been realised in different regulations at international and local level. For instance, at international level the AC has recognised procedural environmental rights to the citizens. An example at European level has been described by Nicola Below11 in his article on European Regulation concerning the Registration, Evaluation, Authorization and Restriction of Chemicals12 (REACH), where he explains the very diverse and elaborate participatory system based on REACH to show the efforts done in this sector of environmental legislation.

6

Shelton, Human rights and the environment, p. 26. E.g., in UK, in its planning legislation of the 1960s. The creation of the Royal Commission on environmental Pollution, 1969, and the Department of the Environment, 1970, was the governmental response to these public pressures: McCormick, 1995. 8 Spyke, p. 263. 9 Steffek/Nanz. 10 Richardson/Razzaque, p. 168. 11 Participation under REACH – Stakeholder Interests and Implementation of EU Secondary Law (Nicola Below), in this volume, p. 131. 12 Regulation (EC) no. 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/ 45/EC and repealing Council Regulation (EEC) no. 793/93 and Commission Regulation (EC) no. 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/ EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (Text with EEA relevance) (OJ L 396, 30. 12. 2006, p. 1 et seq.). 7

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Then, concerning the national level, an interesting example has been illustrated by Julian Zwicker and Franziska Sperfeld.13 In his contribution, he provides an overview of an UfU-project.14 The project, called “Participation of environmental associations 2.0”15, aims to facilitate the co-operative work of environmental organisations in participation procedures by creating an online-tool that should help to communicate, exchange information and work on formal statements co-operatively. An important improvement coming from public participation at any level is that more effective environmental protection through participation in decision-making might involve a change in individuals’ behaviour. Thus, this aspect of participation is more linked to process of awakening towards an ecological responsibility. When we talk about participation and environmental participatory rights we can see also a duty to participate, nevertheless this approach is almost anthropocentric: in fact, according to Taylor16, the environment is only “protected as a consequence of, and to the extent necessary to meet, the need to protect human wellbeing. An environmental right thus subjugates all other needs, interests and values of nature to those of humanity. Environmental degradation or loss of ecological integrity as such is not a sufficient cause for complaint; it must be linked to human wellbeing”. Consequently, the individual has the right to initiate legal action and there is “no guarantee of its utilisation for the benefit of the environment, nor is there any recognition of nature as the victim of degradation”.17 Hence, environmental rights result in “creating a hierarchy” where humanity has a superior position, separate from other species of the Planet. Protection stems from human-centred environmental rights and so the actual state of the environment is determined by the needs of humanity, not the needs of other members of the natural community.18 Consequently, a need to integrate a new eco-centric approach is growing in legal theory.19 According to the ecological approach, when formulating an environmental human right humans should be viewed as a unit in the ecological system and one “should proceed on the basis that his environmental rights are qualified by the rights and interests of other affected sectors of the ecology”.20

13 Participation of Environmental Associations in the Context of Nature Conservation Law in Germany (Julian Zwicker/Franziska Sperfeld), in this volume, p. 117. 14 Unabhängiges Institut für Umweltfragen, in English: Independent Institute for Environmental Issues. 15 The project is called ‘Verbändebeteiligung 2.0‘. 16 Taylor, p. 99. 17 Taylor, p. 99. 18 Bosselmann, p. 127. 19 Weiss, Intergenerational Equity, p. 205. 20 Pathak, p. 223.

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In fact, man does not enjoy a higher position on the tree of evolution over the rest of nature but “he is, indeed, merely a component equal with the other components of the ecological bio-system”21 and he does not hold a superior status but just a different kind of status which grants him responsibilities towards other species and the planet. Consequently, man has the duty to articulate and defend the rights of other occupants of the planet. Entitlements to natural resources and a healthy environment, usefully expressed as rights, can be integrated by duties which respect and guarantee ecological boundaries. These duties can be expressed in ethical and legal terms as they define content and limitations of human rights.22 Although the role of the citizen becomes in this perspective more important that does not mean that the role of the State and its duty to protect the ecological interest has been eliminated. Its role remains an exceptionally important focus because it can provide the legal and material support for further ecological democratisation which requires governmental policies to create the conditions and spaces for its exercise. In his contribution, Paolo Turrini scrutinised the role of the States and their obligations for example “to cooperate when dealing with transboundary or common resources – a duty that could easily be deemed to concern decision-making processes and so entail a corollary obligation to involve all the interest bearers”.23 In conclusion, it may be said that the ecological approach to environmental rights has to acknowledge the interdependence of rights and duties, because as Cullet remarked “the only way to achieve an effective implementation of the rights is to lay a duty on the holders of the rights, to participate in the enhancement of the environment”.24

III. Ecological Duties: Two Fundamental Duties Traditionally, the duty-approach offers a subordinated prospective. According to a legal analysis, individuals have the general duty to respect the rights of others and to abstain from disobeying those social customs codified in laws.25 Rights can subsequently be identified as the primary focus of attention since they stand logically prior to duties. Rights are also more tangible than duties since they benefit from a higher degree of public visibility, understanding, and support than a parallel dis-

21

Pathak, p. 205 – 206. Bosselmann, p. 146. 23 Participatory Rights and the Notion of Interest in Environmental Decision-making: a Theoretical Sketch and Some International Legal Considerations (Paolo Turrini), in this volume, p. 57. 24 Cullet, p. 25. 25 Feinberg. 22

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course of duties.26 Nevertheless, the slogan ‘no rights without responsibilities’, coined during the French Revolution, is starting to take a new position in modern green political and legal thought.27 Indeed, the other face of environmental rights presumes an active attitude on behalf of citizens, and even more, a citizens’ duty to protect the environment. Each person has the right to have his or her environment protected, but is also obliged to contribute to the common effort. Citizens are not passive beneficiaries, but share responsibilities on the formation of all community interests.28 For this reason, some scholars have recognised that positive ecological duties often “flow from rights”29. Habermas has suggested in another context to take the next step and establish a legal duty to make active use of democratic rights.30 A rights-based approach could be used to specifically create legal duties for all decision-makers in relation to protection of the environment.31 The right would also entrain the imposition of a duty to refrain from activities that harm the environment on individuals, organisations, and corporations.32 A duty has first to be laid upon all individuals as their combined actions can have a significant impact. Moreover, it is worth noting that ecological duty has its background in the principle of ecological responsibility. Indeed, ecological responsibility is not a new topic: Jonas was one of the first scholars to propose this principle as a way to cope with the ecological problems generated by technological society.33 In “The Imperative of Responsibility” Jonas revives the earlier ethics of virtue from ancient Greek philosophy, criticises human interactions with nature for being based solely on techné, observes that ethical principles have not kept up with technological changes, and proposes a new imperative: “Act in such a way that the consequences of your action are compatible with the permanence of genuine human life on Earth.”34 Having clarified the origin and meaning of ecological responsibility, now it is useful to identify two kind of ecological duties: the first one is linked to the protection of the environment for the sake of the present and future generations and the second is the protection of the environment for the environment.

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Feinberg. Weiss, Intergenerational Equity. 28 Kiss, p. 201. 29 Desgagne, p. 263; Weiss, In Fairness to Future Generation, p. 45, who affirms “[p]lanetary rights and obligations are integrally linked and are in the first order collective obligations and collective rights. The rights are always associated with the obligations”. 30 Habermas. 31 Gormley, p. 85; Nickel, p. 281. 32 Nanda/Pring, p. 475. 33 Jonas, p. 36. 34 Jonas, p. 36. 27

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1. Duty to Protect the Environment for the Sake of the Present and Future Generations Philosophy, religion, green political thought, and some legal traditions from diverse cultural traditions have already recognised that man is trustee or steward of the natural environment. From this arises man’s duty to conserve the planet for present and future generations.35 Nevertheless this recognition is not universal and almost all environmental theories note that there is a huge lack of intra-generational and inter-generational equity.36 Intra-generational equity concerns the adequate consideration by political leaders in the developed countries vis-à-vis present generations living in developing countries. Intra-generational equity is narrowly linked to the footprint discourse, e. g. the inequity of the share of the planet’s natural resources among members of the present generation. Thus, individuals who currently leave inordinately large ecological footprints are obliged to act by decreasing their consumption of earth’s resources.37 The inter-generational issue underlines that our responsibilities to future generations demand that we take a long-term perspective.38 All decisions taken today will affect the quality of life for generations to come. Indeed, future peoples will suffer from the ways in which the environment is degraded and the extent to which the earth’s resources are wasted.39 Responsibilities vis-à-vis all members of our species exist, as it has been well theorised by Weiss in his essay titled Fairness to Future Generations.40 The human holds Earth in trust for future generations. The principle of inter-generational equity forms the basis of a set of inter-generational obligations and rights, or planetary rights and obligations that are held by each generation. According to the author, “when we are born, we inherit a legacy from past generations to enjoy on the condition that we pass it on to future generations to enjoy”41. To sum up, there is an obligation borne by the present generation which involves the protection of the environment for future generations. Thus, each generation is both a custodian and a user of our common natural surroundings. As custodians of this planet, we have certain moral obligations to future generations which we can transform into legally enforceable norms. 35

There are roots in the common and the civil law traditions, in Islamic law, (Islamic Principles for the Conservation of the Natural Environment, 13 – 14 (IUCN and Saudi Arabia 1983), in the Judeo-Christian tradition (Locke, p. 5) and in Asian non-theistic traditions such as Shintoism, Hinduism, Buddhism and Jainism (Weiss, In Fairness to Future Generation). 36 See supra note 1. 37 Latta, p. 377. 38 Weiss, Conservation and Equity, p. 119. 39 Beckman. 40 Weiss, Conservation and Equity, p. 119. 41 Weiss, Conservation and Equity, p. 119.

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2. Duty to Protect the Environment for the Sake of the Environment Regarding the second duty, the Duty to Protect the Environment for the Environment, this obligation is reflected in the principle of sustainability which is “responsibility for the community of life”42. The strong principle behind sustainability is the idea of human survival and maintenance of current conditions. It does not necessarily involve, for instance, restoration, revision, or reparation. It means that humans are entitled, for example, “to kill other species to provide for food or even to generate riches that aim at maintaining or warranting the survival of future generations. This counterfactual argument opens the door to other claims for justice and solidarity for those who cannot speak for themselves, so that the possibility of arguing for poverty alleviation, animal rights, ecological systems, biotic communities, and natural entities”43. Consequently, there is a necessity to recognise an obligation of man towards all non-human elements of the planet. The general principle which provides that an obligation arises only upon a correlative right cannot serve here inasmuch as nonhuman elements cannot be regarded as right-bearing. Stone44 has suggested that even if non-human, whether animate or inanimate, objects cannot be regarded as possessors of rights, they shall be treated as morally considerable. Moral consideration, he says, creates duties of man towards non-human animate and inanimate objects. The mere fact that “non-human things possess an intrinsic goodness, that is, goods in and of themselves, should be sufficient to attract duties”45.

IV. The Implementation of the Ecological Duties in the Aarhus Convention and in the Members States’ Legal Systems Ecological obligations are difficult to implement because they are almost always at the level of moral obligations despite the fact that they have progressed a few steps towards a transformation into legal duties. The strategy for a legal implementation could encompass the following components: first, codification of obligations; then, representation of future generations in decision-making processes and giving a voice to nature, in other words, giving the right to representation to nature.

42

Bosselmann. Nascimento. 44 Stone, p. 56. 45 Pathak, p. 225. 43

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1. Implementation Through Codification Moral responsibility vis-à-vis present and future generations and nature may be differently implemented in law, for instance through a codification. There are a number of ways of achieving this legal implementation. It has been suggested to use international agreements or regional legislations or constitutions, containing provisions for the protection of environmental rights. This could include solemn provisions creating collective and individual responsibilities for the protection and restoration of the ecological basis of all life.46 The suggestion is not just the codification of ecological duties but also the development of particular regulations that may have the effects of influencing people to change their beliefs and, in turn, to act more sustainably.47 a) Implementation in the AC Concerning the implementation at International level, it is worth noting that, as also remarked by Claudia Sartoretti48, from a legal point of view, the AC is an example of how ecological duties of the citizens and Authorities can be recognised and how it can be become also a legal obligation.49 In fact an example of ecological duties of the authorities can be found in art. 1 AC, that states: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decisionmaking, and access to justice in environmental matters in accordance with the provisions of this Convention”.

This provision underlines, unlike most multilateral environmental agreements which cover obligations that Parties have to each other, that the AC imposes a clear obligation on its parties and public authorities towards the ‘public’, as far as access to information, public participation and access to justice are concerned.50 In the same way this aspect has been observed by Federica Cittadino: “In the Aarhus 46

Barresi, p. 3. Davis; Geisinger, p. 35. 48 The Aarhus Convention between Protection of Human Rights and Protection of the Environment (Claudia Sartoretti), in this volume, p. 43: “[i]n essence, the environmental protection is eventually dealt with in the same way as any other human right. In this way the Aarhus Convention appears as a typical reflection of our civil societies, which are based on the main idea of equal rights for everybody. In fact, for the first time an international agreement codifies a right to environment and, at the same time, recognizes a correlated duty to protect natural resources.” 49 The Preamble of the AC recognises that “every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations”. 50 Stec/Casey-Lefkowitz, p. 1. 47

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Convention, participation is conceived both as a means to realise the right ‘of every person’ to enjoy a satisfactory level of environmental protection and as a prerequisite for States to be able to fulfil their duty to protect the environment. Not only are rights granted to individuals and to the public, but the Convention also spells out corresponding obligations for States to establish an adequate legal framework in order to achieve the Convention’s objectives”.51 Thus, it is up to the state to provide for the necessary administrative, legal and practical structures, which shall guarantee the basic three rights, covered by the Convention. This represents a new approach to the role of the State. Instead of solving ecological problems itself, the State acts as a sort of referee in a process involving larger social forces, leading to a more organic and complete result. Moreover AC is “the first international legal instrument to provide a set of legal obligations”, according to the Implementation Guide, the duties are principally vis-àvis the future generations than vis-à-vis the Environment itself.52 This can also be seen in Preamble to the AC, where participatory rights are extended to citizens, and it is acknowledged that the citizens have an obligation to future generations. In other words, the impact of present activities on the well-being of future generations must be taken into consideration.53 In addition, paragraph 5 of the preamble affirms “the need to protect, preserve and improve the state of the environment and to ensure sustainable and environmentally sound development”. In the context of the AC, the aforementioned statements establish that procedural rights are not only important for the realisation of the substantive right to a healthy environment, but they also have a role to play in the fulfilment of ecological duties by helping to “protect, preserve and improve the state of the environment”.54 This principle is better specified in the second part of paragraph 7 of the preamble, which states that: “every person has […] the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations”. In which way the duties of protection, preservation and improvement affect the state of the environment is unclear. The first two words imply that environmental damage or degradation should be prevented while the verb ‘improve’ appears to indicate that damage that has already been done should be repaired and the environment restored or renewed. The emphasis on ‘protection’ and ‘renewal’ rather than

51

Public Interest to Environmental Protection and Indigenous Peoples’ Rights: Procedural Rights to Participation and Substantive Guarantees (Federica Cittadino), in this volume, p. 73. 52 Stec/Casey-Lefkowitz, p. 29. 53 Stec/Casey-Lefkowitz, p. 29. 54 Stec/Casey-Lefkowitz, p. 16.

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the ‘substitution’ of man-made for natural resources means that ‘substitution’ is not an option.55 These paragraphs lay out the basis for the connection between public participation and basic human rights, the right to a healthy environment, as well as the duty to protect the environment for the benefit of present and future generations. In particular, paragraph 8 declares: “Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decisionmaking and have access to justice in environmental matters”. b) Implementation in Member States’ Legislation Concerning the implementation of the ecological duties of the Authorities in Germany and Italy, there are some examples of codification. In particular Germany, as it has been explained by Cristina Fraenkel-Haeberle in her article56 : “Art. 20a Grundgesetz (Basic Law) in Germany, which safeguards natural resources, introduced in 1994, has the status of a programmatic norm (Staatszielbestimmung) which does not contemplate an enforceable right of private citizens, but nevertheless limits the powers of the state, as a basic principle, to act conforming to it by legislative, executive and judicial authorities, is a case in point. The norm assigns to all state authorities (Federation and Länder) the task of ‘safeguarding natural resources including assuming responsibility towards future generations and animals within the framework of the constitutional order’.” Moreover Cristina Fraenkel-Haeberle explains that in 2006 a draft law was presented to the German Bundestag which aimed to introduce the concept of ‘justice from one generation to the next’ in the Basic Law, “aiming thereby to ensure an equitable distribution of resources regarding future generations too, bearing clearly in mind that environmental protection, above all regarding the climate, requires a long-term approach that goes beyond the narrow time limits of political office”. This proposal “sought to extend the promise made to future generations to questions dealing with economic (especially financial) policy so as to afford the legislator sufficient room for manoeuvre instead of letting the future generations be crushed by an overwhelming public debt and left with an under financed social and pension system”. German doctrine interestingly suggested implementing an ecological duty, using the principle of proportionality in an environmental sense. Cristina Fraenkel-Haeberle explains that “the proposal was made to insert a ‘contrat naturel’ between humanity and nature in the ‘contrat social’ between individual and society. Proportionality in the ecological sense was interpreted in this perspective as the equilibrium between financial costs and ecological advantages. So it was envisaged extending a principle previously used for state intervention limiting citizens’ rights to human be55

Dobson, p. 45 – 46. Participatory Democracy and the Global Approach in Environmental Legislation (Cristina Fraenkel-Haeberle), in this volume, p. 31. 56

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haviour that impacts on the world of nature. Both cases entail a limitation to authority, to the state in the first case regarding society and, in the second case, to society regarding nature”. In the Italian Constitution there are not direct references to the ecological duties as Viviana Molaschi has noted, but it is possible interpret Art. 2 of the Constitution in this sense: “Art. 2, not only recognises and guarantees the inviolable human rights, but expects that the fundamental duties of political, economic and social solidarity be fulfilled”57. The duty of solidarity enshrined in this article, which can be referred also to the environment, can justify that the subjects of the legal system can be charged with a duty of environmental protection.” 2. Implementation Through Representation of Future Generations and of Nature Concerning future generations, democratic governments have been under extensive criticism for not adequately taking the interest of the unborn into account. In fact, political participation in democracies includes only living people, leaving the “unborn without a voice”.58 Also, the World Commission on Environment and Development reported that “future generations do not vote; they have no political or financial power; they cannot challenge our decisions”59. Hence, it is ultimately important for the development of a legislative mechanism to represent future generations, especially since the decisions that the individual and government make today will determine the initial welfare of future generations.60 Regarding the implementation through Representation of the Nature it is important to introduce the concept of nature’s rights which has been well documented in 1972, following the publication of Stone’s article “Should trees have Standing?”61. For almost forty years the concept has been debated amongst lawyers, philosophers, theologians, and sociologists. This debate has led to an advocacy of a wide variety of rights approaches including legally enforceable rights for nature as envisaged by

57 The Implementation of the Aarhus Convention in Italy: a Strong ‘Vision’ and a Weak ‘Voice’ (Viviana Molaschi), in this volume, p. 103. 58 The reasons to give voice to the unborn and to future generations are explained by Shelton, Human Rights, Environmental Rights, p. 110: “[a] depleted environment harms not only present generations, but future generations of humanity as well. First, an extinct species and whatever benefits it would have brought to the environment are lost forever. Second, economic, social, and cultural rights cannot be enjoyed in a world where resources are inadequate due to the waste of irresponsible prior generations. Third, the very survival of future generations may be jeopardised by sufficiently serious environmental problems.” 59 World Commission on Environment and Development, Our common future, 1987; see also Beckman. 60 Weiss, Conservation and Equity, p. 272. 61 Stone, p. 450.

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Stone.62 The point they have in common is an attempt to give concrete and meaningful recognition to the intrinsic value of nature. Stone himself recognises the limitations of his ‘rights’ theory and in the final pages of his article discusses the importance of a changed environmental consciousness. He states that legal reform, together with attendant social reform, will be insufficient without a “radical shift in our feeling about ‘our’ place in the rest of Nature”. Stone has never considered ‘rights’ as an end in themselves but rather as a means to an end. In fact a final step towards a thorough protection of nature is taken when rights are attributed to the environment itself. Many configurations are possible, depending on which representation of nature merges with law to forge answers to the questions of personality and legal standing. Sophisticated ideas have been proposed, ranging from the rights of big apes to those of ecosystems. Although some maintain that this right can be conceived only in objective terms – that is, a minimum standard of protection to shield nature with – some think that a subjective element may be envisaged. Given the obvious impossibility for nature to assert its own rights in front of a judge, to take them seriously, thus justifying the use of the word ‘right’, would mean to concede this capacity to human representatives. Thus the environment cannot enforce its rights itself and needs someone to intercede on its behalf. a) Art. 9 (3) AC, the Fourth Pillar Representation of future generations and Nature can be realised granting standing to citizens or state authorities to intervene in proceedings before national courts and administrative bodies, and state or provincial courts. Art. 9 (3) AC is moving in this direction when it creates an additional category of cases, where citizens represent the interest of future generations and Nature, because they have access to administrative or judicial procedures to challenge acts and omissions, whether or not these are related to the information and public participation rights, by private persons and public authorities which contravene national law relating to the environment. Art. 9 (3) AC recognises the significance of the public enforcement of environmental law by providing for direct action against polluters or regulators and this suggests a continued ‘monitoring’ type role for the public.63 Hence, this provision from an idealistic point of view is quite a big revolution in the field of environmental law enforcement and thus it might be considered a fourth pillar.64 Direct citizen enforcement, as a model of a citizen suit, has been initiated to 62

Stone, p. 450. Lee/Abbot, p. 101. 64 Parola. 63

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develop throughout Europe, though. An overview about this article and the German implementation has been offered in Angela Schwerdtfeger’s contribution.65 Thus, this ‘fourth pillar’ in the AC clarifies that it is not only the purpose of environmental authorities and public prosecutors to enforce environmental law, but that the public plays a role as well, to fulfil the environmental duty to conserve and protect the environment for future generations and for the environment itself. b) Implementation in Member States’ Legislation Some authors, and also the World Commission on Environment and Development,66 suggest implementation through representation by setting up an ombudsman for future generations and for Nature. This institution could take a step towards ensuring that the interests of future generations and Nature are considered either “by giving standing to a representative of future generations (and Nature) in judicial or administrative proceedings or by appointing and publicly financing an office charged with ensuring that positive laws conserving our resources are observed, with investigating complaints of abuse, and with providing warnings of pending problems”.67 A very interesting example of ombudsman for Future Generations and of Nature at national level can be found in Ulrike Giera’s contribution, where she describes the Austrian institution of the Ombudsman for the Environment (Umweltanwalt).68 This institution is “not a private person who acts as an attorney for the environment, but rather a governmental organisation”. Moreover, “[a] study carried out for the European Commission found that in all Member States, the Austrian institution of an Ombudsman for the Environment comes closest to Stone’s idea. Through the Ombudsman the environment gains standing in various proceedings. As a guardian for the environment, the Ombudsman is entitled to claim environmental issues in administrative proceedings and defend the interests of the environment”. Another interesting duty of the Ombudsman is to provide information, support and counselling for individuals. Ulrike Giera explains that “in this respect the Ombudsman for the Environment is not only an attorney for the environment, but also an attorney for citizens regarding environmental matters. Individuals, municipalities or groups of persons can file complaints or applications concerning environmental issues with the Ombudsman. A person who is affected by an environmental issue or who has knowledge of an environmental nuisance can address his/her concerns to

65

Implementation and the Separation of Powers (Angela Schwerdtfeger), in this volume, p. 169. 66 World Commission on Environment and Development. 67 Weiss, Conservation and Equity, p. 272; Weiss, Intergenerational Equity, p. 25; Westra. 68 Attorneys for the Environment – an Effective Implementation of Art. 9 (3) Aarhus Convention? (Ulrike Giera) , in this volume, p. 215.

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the Ombudsman for the Environment, who then decides whether or not to take action within his/her competence”. However, without a doubt, concerning the implementation of art. 9 (3) AC, the Ombudsman for the Environment is one measure to implement the AC and in particular the duty to protect the environment expanding the narrow access to justice to some extent by participating in administrative and court proceedings and by taking on the claims of individuals.

V. Conclusion In conclusion, in many cultures individuals have duties and responsibilities towards others and the wider community, thus the focus of environmental law can no longer be entirely anthropocentric; a shift towards an eco-centric approach is necessary which takes into account the interests of human beings, individual non-humans and the environment as a whole. The shift towards an eco-centric approach would allow defining and shaping the ecological duties of the citizens and of the authorities towards the Planet. References Barresi, Paul: Beyond fairness to future generations: An intergenerational alternative to intergenerational equity in the intergenerational environmental arena, in: Tulane Environmental Law Journal, vol. 11, 1997, p. 3 et seq. Beckman, Ludvig: Democracy, future generations and global climate change, in: Workshop “Democracy on the day after tomorrow” at the ECPR Joint Sessions, Helsinki, 2007. Bosselmann, Klaus: The Principle of Sustainability, 2008. Boutonnet, Mathilde: La consécration du concept d’obligation environnementale, in: Recueil Dalloz, 26 juin 2014, no. 23, 2014, p. 1335 et seq. Cullet, Philippe: Definition of an Environmental Right in a Human Rights Context, in: Netherlands Quarterly of Human Rights, vol. 13, 1995, p. 25 et seq. Davis, Joan: Conceptual Change, Emerging Perspectives on Learning, Teaching and Technology. University of Georgia, 3 October, 2007, available at: www.projects.coe.uga.edu/epltt/ index.php?title=Conceptual_Change. Desgagne, Richard: Integrating Environmental Value into the European Convention on Human Rights, in: American Journal of International Law, 1995, p. 263 et seq. Dobson, Andrew: Justice and the Environment: Conceptions of Environmental Sustainability and Dimensions of Social Justice, 1998. Eckersley, Robin: Ecofeminism and Environmental Democracy: Exploring the Connection, in: Women & Environments International Magazine, 2001, p. 52 et seq. – The Green State: Rethinking Democracy and Sovereignty, 2004. Feinberg, Joel: Harmless wrongdoing: The moral Limits of the Criminal Law, 1998.

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Geisinger, Alex: A Belief Change Theory of Expressive Law, in: Iowa Law Review, vol. 88, 2002, p. 35 et seq. Gormley, W. Paul: The legal Obligation of the International Community to Guarantee a Pure and Decent Environment; The Expansion of Human Rights Norms, in: Geo International Environmental Law Review, 1990, p. 85 et seq. Habermas, Jürgen: Citizenship and National Identity: Some Reflections on the Future of Europe, in: Praxis International, vol. 12, 1991, p. 1 et seq. Howard, Wolfson: Environmental democracy: Use it or lose it, in: National Wildlife, 1996, p. 34 et seq. Jasanoff, Sheila: The dilemma of environmental democracy, in: Science and Technology, vol. 13, 1996, p. 2 et seq. Jégouzo, Yves: De certaines obligations environnementales: prévention, précaution e responsabilité, in: L’actualité juridique droit administratif (AJDA), 2005, p. 1164 et seq. Jonas, Hans: Das Prinzip Verantwortung, 1979. Kiss, Alexandre: An introductory note on a human right to environment, in: Weiss, Edith Brown (ed.), 1992, p. 201 et seq. Latta, P. Alex: Locating Democratic Politics in Ecological Citizenship, in: Environmental Politics, vol. 16, 2007, p. 377 et seq. Lee, Maria/Abbot, Carolyn: The Usual Suspects? Public Participation under the Aarhus Convention, in: Modern Law Review, vol. 80, 2003, p. 101 et seq. Locke, John: An Essay Concerning the true Original, Extent and End of Civil Government, in: Social Contract, 1968, p. 5 et seq. Maljean-Dubois, Sandrine: La portée des normes du droit international de l’environnement à l’égard des entreprises, in: Journal du droit international (JDI), 2012, p. 93 et seq. Mason, Michael: Environmental Democracy, 1999. Melo-Escrihuela, Carme: Promoting Ecological Citizenship: Rights, Duties and Political Agency: in: An International E-Journal for Critical Geographies, 2008, p. 113 et seq. Nanda, Ved/Pring, George: International Environmental Law for the 21st Century, 2003 Nascimento, Amos: Global frameworks for environmental justice: Searching for global responses to global problems, in: 8th Global Conference 2009 “Environmental Justice and Global Citizenship, 10th – 12th July 2009, available at: www.inter-disciplinary.net/critical-is sues/ethos/environmental-justice-and-global-citizenship /project-archives/8th/. Nickel, James W.: The Human Right to a safe Environment: Philosophical Perspectives on its Scope and Justification, in: Yale Journal International Law, vol. 18, 1993, p. 281 et seq. Parance, Béatrice: Comment concilier le droit des contrats avec les obligations environnementales poursuivant la satisfaction de l’intérêt générale?, in: Recueil Le Dalloz, 2013, p. 647 et seq. Parola, Giulia: Environmental Democracy at the Global Level, 2013.

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Pathak, Robert: The Human Rights System as a Conceptual Framework for Environmental Law, in: Weiss, Edith Brown (ed.): Environmental Change and International Law, 1992, p. 223 et seq. Richardson, Benjamin/Razzaque, Jona: Public Participation in Environmental Decision-making, in: Richardson, Benjamin/Wood, Stepan (eds.): Environmental Law for Sustainability, 2006, p. 168 et seq. Shelton, Dinah: Human Rights, Environmental Rights and the Right to Environment, in: Stanford Journal of International Law, vol. 28, 1991, p. 110 et seq. – Human rights and the environment: what specific environmental rights have been recognised?, in: Denver Journal of International Law and Policy, vol. 35, 2007, p. 26 et seq. Spyke, Nancy Perkins: Public Participation in Environmental Decision-making at the new Millennium: Structuring new spheres of Public Influence, in: Boston College Environmental Affairs Law Review, vol. 26, 1999, p. 263 et seq. Stec, Stephen/Casey-Lefkowitz, Susan: The Aarhus Convention: An Implementation Guide, UN/ECE, UN Publication, 2000. Steffek, Jens/Nanz, Patrizia: Deliberation and Democracy in Global Governance: The Role of Civic Society, in: Thoyer, Sophie/Martimort-Asso, Benoit (eds.): Participation for Sustainability in Trade, 2005, p. 61 et seq. Stone, Christopher: The Environment in Moral Thought, in: Tennessee Law Review, 1988, p. 56 et seq. Taylor, Prue: Ecological Integrity and Human Rights, in: Westra, Laura/Bosselmann, Klaus/ Westra, Richard (eds.): Reconciling Human Existence with Ecological Integrity, 2009, p. 99 et seq. Weiss, Edith Brown: Conservation and Equity between Generations, in: Contemporary Issues in International Law, 1984, p. 119 et seq. – In Fairness to Future Generation: International Law, Common Patrimony and Intergeneration Equity, 1989. – Intergenerational Equity: a legal framework for global environmental change, in: Weiss, Edith Brown (ed.): Environmental Change and International Law, 1992, p. 25 et seq. Westra, Laura: Environmental Justice and the Rights of Unborn and Future Generations, 2006. World Commission on Environment and Development: Our Common Future, Bruntland Report, 1987.

Participatory Democracy and the Global Approach in Environmental Legislation By Cristina Fraenkel-Haeberle Abstract Il tema della democrazia partecipativa negli Stati multilivello pone al centro dell’attenzione l’esigenza di stabilire come i sistemi nazionali possano essere adeguati ai processi d’integrazione in atto, sia a livello subnazionale, sia sovranazionale, allo scopo di sperimentare nuove forme democratiche. Quest’evoluzione fa emergere la necessità, non solo di riforme istituzionali e procedurali, ma anche di un approccio innovativo, da attuarsi mediante un ripensamento del sistema democratico attraverso forme “alternative” di legittimazione politica. In considerazione della dimensione globale dei problemi, che male si attaglia alla configurazione prevalentemente nazionale della democrazia rappresentativa, prende in tal modo sempre più piede un modello di democrazia partecipativa esercitato in modo settoriale e con un alto grado di specializzazione. Il diritto ambientale, e in particolare la convenzione di Aarhus, promuovendo un approccio bottom-up, incentrato su un’ampia informazione, partecipazione e tutela giurisdizionale dei cittadini interessati, comporta però anche necessariamente una forte valorizzazione della dimensione locale. Il contributo analizza le forme in cui si declina la democrazia partecipativa, illustrando il suo carattere ‘deliberativo’ e “associativo”, per poi soffermarsi su un approccio trasversale nel diritto ambientale. Oltre all’ottica transfrontaliera, viene posta in risalto la necessità di una prospettiva temporale di ampio respiro, motivo per cui, tra l’altro, in Germania è stata introdotta una modifica costituzionale finalizzata alla tutela delle risorse naturali con lo sguardo rivolto alle future generazioni. Tale prospettiva è difficilmente compatibile con i tempi brevi di un mandato politico nella democrazia rappresentativa, ove la proiezione temporale è notoriamente circoscritta all’appuntamento elettorale successivo. Nel diritto ambientale vengono generalmente in rilievo ‘beni comuni’, come ad esempio le risorse idriche, l’atmosfera e il clima, il cui godimento deve essere per sua natura collettivo e il cui controllo democratico si pone con pieno diritto nell’interesse pubblico. Il contributo si chiude con l’analisi di un esempio di circolazione orizzontale dei modelli sulla spinta uniformatrice del diritto internazionale ed europeo, che coniuga il concetto di partecipazione con le garanzie accordate dalla Convenzione di Aarhus.

I. Introductory Remarks The theme of participatory democracy in multi-level states with a federal (e. g. Germany) or regional (e. g. Italy) character is at present the object of wide-ranging and large scale debate. At the centre of attention lies the need to establish how dem-

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ocratic systems can be brought into line with the changed institutional conditions, under which modern states find themselves operating as well as with the related processes of integration, both at a sub-national and a super-national level, in order to try out new democratic forms. In fact, there is an ever increasing awareness of the mounting intolerance of citizens towards the traditional models of representative democracy. This finds its expression in low turnouts at the voting polls and also in the dissatisfaction with and low esteem of the political body. The need therefore emerges, for not only various institutional and procedural reforms, but also for an innovative approach to be put into force through rethinking the democratic system in order to pave the way for ‘alternative’ forms of political legitimation. One should in fact, consider that the changed context in which states find themselves operating, obliges them above all in the area of the environment, to adopt a super-national approach in line with globalization, that overcomes the narrow schemes of the traditional state-centred democracy. Environmental law especially the Aarhus Convention (AC), promotes a bottom-up approach centred on completely available information, participation, and legal protection of citizens, also necessarily involves a major strengthening of the local dimension according to the formula of ‘glocalization’.

II. Participatory, Deliberative and Associative Democracy Democracy means that decision making is entrusted to the demos, although it is commonly known that in most democracies the demos rules through its representatives. In this sense the term ‘democratic participation’ can be considered misleading, as on the one hand the demos can influence through the election process the way in which representation is exercised, on the other hand it gives up in such a way participatory democracy in a strict sense of the word.1 Thus, representative democracy can be seen as a prerequisite for participatory democracy and as the main source of democratic legitimation; conversely democratic participation can be a good complement to the direct and representative forms of democracy.2 Participatory democracy has been defined as one of the latest achievements of the “long journey of democracy”.3 This statement acknowledges the current challenge of reorganizing power beyond and within the boundaries of the nation state, a situation that has rightly been compared to the task faced by the American citizens of the late eighteenth century, when they had to create a working democratic government.4 In view of the growing discontent of citizens and their disaffection with politics, and considering the crisis of the traditional intermediary bodies, i. e. political parties 1

See more extensively on this point: Gamper, p. 67 et seq. Gamper, p. 68. 3 Bifulco, p. 65; Fraenkel-Haeberle, p. 507 – 522 for the definition of models of participatory democracy. 4 Benz, p. 279. 2

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and trade unions, the recent decades have witnessed, in fact, the search for the solution to fill this gap of consent and of legitimation. The aim has been to strengthen the relationship between private individuals and institutional subjects, the link between state-community and state-apparatus. Luigi Bobbio5 is credited with distinguishing between the models of participatory democracy drawn from the experiences of South America and the patterns of deliberative democracy from Anglo-Saxon culture. According to this interpretation, deliberative democracy is considered a theoretical substrate on the basis of which have developed concrete forms of participatory democracy, which thus takes on a more applicative character.6 In conclusion, participatory democracy is considered a practical explication of the deliberative democracy model. Even as regards geographic location, deliberative democracy is placed in a context different from that of participatory democracy, i. e. mainly in the Anglo-American world. This model has been described as the “normative ideal of democracy”,7 founded on the utmost inclusiveness and on the exchange of information. In order to describe it, the concept of ‘démocratie technique’ has been coined to define the deliberative processes aimed at enhancing not so much the know-how of experts and of professionals as the knowledge and experience of society at large.8 The concept of deliberative democracy is largely based on a process of consultation and negotiation that takes place before the decision-making phase. The deliberative phenomenon is a rational moment aimed at informing and raising awareness on a specific topic. It promotes a culture of dialogue through broad debate on a political level. Deliberative democracy is, therefore, especially a moment of discourse, but does not have the effect of transferring the final decision to other parties, which rather remains with the representatives of representative democracy. Models of participatory democracy are instead mainly oriented towards effectively influencing public decisions following the complex process of mediation of interests.9 Taking another approach, deliberative democracy is described as a species of the genus represented by the participatory democracy model.10 The ‘deliberation’, i. e. the consultation, is countered with the concept of associative democracy. The aim of the latter category, stemming from a neo-corporative system, is to take due account of the needs of an increasingly pluralist and diversified society. Within this context, the State sustains the organisation of especially important interests and of the associations and organisations in charge of their safeguarding. From this viewpoint, democracy is intended as the negotiation between the representatives of collective interest, i. e. members of Parliament and Government on the one hand, and represen5

Bifulco, p. 67, who quotes from Bobbio, p. 14. Bifulco, p. 67. 7 Bifulco, p. 67. 8 Herzberg/Cuny, p. 7. 9 Schmidt, p. 237. 10 Donati, p. 156. 6

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tatives of specific social interests on the other. The normative pattern of associative democracy thus determines the institutionalization of a democracy of negotiation and agreement.11 The ultimate goal is the search for a shared solution vis-à-vis the ‘cheaper’ model, intended also in terms of time of the mere aggregation of interest, typical of representative democracy. According to this form of mediation of interest, the decisions are not taken within the majority system, but rather within the debate between different subjects representing various interests, who try in this way to optimize the problem-solving process. In summary, the following distinction can be made between the deliberative and associative models. Deliberative democracy aims to engage in consultations as many stakeholders as possible. On the contrary, the associative model aims to achieve this within the various stakeholder ‘arenas’ of discussion that become significantly involved in the decision-making process.12 Associations, the involvement of social groups and the activation of networks in civil society are, in fact, considered a significant factor of enrichment capable of reviving the democratic process.13 Both models – the deliberative one and the associative one – are used to promote public discussion of controversial issues, thus favouring legitimation and acceptance of the decisions taken at the political level, which are enriched by the results of these participatory procedures.

III. The Temporal and Transversal Dimension in Environmental Law – Sustainability in Law Pollution, as is generally known, does not stop at national boundaries, a consideration that has long since led to the search for ‘global’, or, at least, transnational solutions to environmental problems. Going beyond the cross-frontier dimension, various parties have felt the need for an ‘Environmental Constitution’, which would pave the way for a long-term temporal perspective. These parties had clearly in mind that environmental protection, especially regarding the climate, requires a long-term approach going beyond the narrow time limits of a political office, as it is envisaged by the pattern of representative democracy. Art. 20a Grundgesetz (Basic Law, thereafter: GG) in Germany, introduced in 1994, which safeguards natural resources, has the status of a programmatic norm (Staatszielbestimmung) and is an example of a possible legal solution. Programmatic norms do not contemplate an enforceable right of private citizens, but nevertheless limit the powers of the state as a basic principle with the obligation for legislative, executive and judicial authorities to act conforming to it. The norm assigns the task of “safeguarding natural resources including assuming responsibility towards future generations and animals within the framework of the constitutional order” 11

Benz, p. 264. Sommermann, p. 206 et seq. 13 Ruffert, p. 345.

12

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to all state authorities (Federation and Länder). Thus, there emerges a multipolar concept of safeguarding concerning the State, which imposes on those public authorities called on the exercise of their function of protection, to achieve the correct equilibrium between interests following the principle of proportionality.14 Unlike the Charte de l’environment (2005), which is an integral part of the French Constitution, the German Basic Law, in the disposition on environmental protection mentioned above, adopted a unilateral interpretation of the concept of sustainability that is focused solely on environmental protection without including in the bounds of the law the dimension of economic development, and social progress. The Brundtland Report Our Common Future (World Commission on Environment and Development [WCED], 1987), along with the Rio Declaration 1992, contain the concept of sustainability described in a wider perspective. In this regard, according to the Brundtland Report, “sustainable development is development that meets the needs of present generations without compromising the ability of future generations to meet their own needs”. This definition interprets sustainability following a transversal logic standing on three pillars: an ecological, an economic and a social one, which can now be held to represent the guideline in the debate on (intergenerational) justice on the environmental question. Also, the efforts of the EU to establish a principle of sustainability within its treaties can be considered at the core of EU environmental law. A draft law has been presented to the German Bundestag in 2006, which sought to insert the concept of ‘justice from one generation to the next’ in the Basic Law. It aimed thereby at ensuring an equitable distribution of resources regarding future generations. Going beyond the previously mentioned principle of environmental sustainability, which is already foreseen by the Basic Law, this proposal sought to extend the promise made to future generations to questions dealing with economic (especially financial) policy so as to afford the legislator sufficient room to manoeuvre itself, rather than letting future generations be crushed by an overwhelming public debt and an underfinanced social and pension system.15 Still following from the formula neminem laedere in its temporal dimension, the German doctrine also began the transposition of the principle of proportionality in an environmental sense.16 A new formula was sought to be used in weighing up environmental interests with the logic of reasonableness, by following on from the wellknown concept of ‘social’ proportionality (taken from Prussian police law and aimed at adopting the least intrusive measure to achieve the desired goal), which establishes the grading of the intensity of intervention by public authority in the individual sphere according to the criteria of necessity, suitability and appropriateness.

14

Ekardt, p. 1105 et seq. See for further developments: Kahl, p. 2 et seq. 16 Winter, p. 387 et seq.

15

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It should also be taken into account that nature has neither a legal status nor the ability to act alone and so cannot be attributed subjective rights compared with those of humans. Therefore, the proposal was made to insert a ‘contrat naturel’ between humanity and nature in the ‘contrat social’ between individual and society.17 Proportionality, in the ecological sense, was interpreted in this perspective as the equilibrium between financial costs and ecological advantages. Thus it was envisaged as extending a principle previously used for state intervention limiting citizens’ rights to human behaviour that impacts on the world of nature. Both cases entail a limitation on authority of the State, in the first case regarding society, and in the second case to society regarding nature.

IV. The Democratisation of Environmental Law Environmental law generally highlights “common goods”,18 for example water resources, the atmosphere and climate, the use of which, seeing as they are global ecosystems, must be by their very nature collective. Democratic control emerges as a full right in the public interest. The democratic deficit regarding “equitable utilisation of common goods”,19 often sacrificed to national economic interests, has been stigmatized by many. In this context, environmental democracy can be identified with the concept of equality that is with seeking solutions which permit the more depressed regions of the world to gain access with equal rights to the enjoyment of common goods. Environmental law is increasingly characterised by international treaties and agreements. However, since a predominant role in the international community is played by the executive power, and not by the parliamentary representation of states, we find ourselves facing a democratic deficit which also extends to the multi-level system of the European Union. Political decisions in this supra-national community are laid down by national administrations and, despite the strengthening of the role of the European Parliament under the Treaty of Lisbon, only the national governments can make their voice heard in the Council of Ministers – though they are, nevertheless, responsible before their national parliaments. The focus on the Member States and their governments still remains in the norms of the Treaty on the Functioning of the European Union (TFEU), which disciplines the objectives of environmental policy and the related measures for protection. In particular, in the fundamental sector of water resources, safety guarantees of the water supply are attributed under art. 192 (2) lit. c TFEU to the special legislative procedure which envisages only the consultation of the European Parliament, but not its participation in the legislative procedure with decision making powers.20 17

Winter, p. 387. Mattei. 19 Lakowski, p. 172. 20 Lakowski, p. 174. 18

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Over recent decades, the protection of natural resources has become a fundamental task in international law. Following the publication by the Club of Rome on The Limits to Growth in 1972, which highlighted the exponential growth of the world population with ill-omened consequences for the equilibrium of the planet, the ecological question in all its critical status entered the limelight of general attention.21 The previously mentioned Brundtland Report Our Common Future, the Rio Declaration on the Environment and Development as well as the recent United Nations Environment Programme (UNEP) report Towards a Green Economy,22 have also focused attention on the difficult coexistence of economic growth and environmental requirements, and on the fact that economic rules seldom aim to foster citizen participation. An increasingly preeminent role for NGOs (such as Greenpeace and the WWF) has emerged in environmental policies to compensate for the democratic deficit in decision making over which individual citizens can have no influence. These NGOs, according to the model of associative democracy, have by now become spokespeople for a global public opinion, by obtaining official recognition at the Rio Summit in 1992 (Resolution 44/228).23 Considering that the global dimension of the problems fits in badly with the prevalently national configuration of representative democracy, a model of participatory democracy exercised in a sectorial way with a high level of specialization is constantly gaining ground. Besides, this concept of participation has been incorporated in numerous international agreements, among which the AC of 1998 stands out.24 The drawing-up of the Convention saw the participation of environmental groups in the particular rules on the right to access to information, of citizens’ participation in decision-making, and of access to legal protection, all with the aim of promoting a re-examination of decisions taken on the environment. The Convention is based on a new concept of international law aimed at matching international and national environmental law with basic individual freedoms as well as the associations called on to represent officially the interests of civil society.25 The AC also presents a novelty constituted by its transposition by European directives 4/2003/EC26 (concerning information on environmental issues) and 35/ 2003/EC27 (concerning participation in the environmental questions), something 21

Krüger, p. 427. http://www.unep.org/greeneconomy/greeneconomyreport/tabid/29846/default.aspx (last visited in June 2014). 23 Lakowski, p. 173. 24 Convention on access to information, public participation in decision making and access to justice in environmental matters. 25 Lakowski, p. 173. 26 Directive 2003/4/CE of the European Parliament and the Council on 28 January 2003 on public access to environmental information which abrogates directive 90/313/CEE of the Council, OJ 14. 02. 2003, no. L/41. 27 Directive 2003/35/CE of the European parliament and the Council on 26 May 2003 which envisages public participation in drawing up certain plans and programmes on envi22

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to which the NGOs have also made an active contribution. As regards legal protection, which is now accessible to environmental associations, who represent, according to the pattern of associative democracy, public interests and not individual rights, a new term was coined in German law: altruistische Verbandsklage,28 meaning the altruistic group action of (environmental) associations, legitimized to take legal action by a special national provision adopted in accordance with European law. Also, according to the jurisprudence handed down by the Court of Justice of the European Union (CJEU),29 these associations are entitled to defend before the law interests protected by previously mentioned EU norms, even in absence of the violation of an individual right.30 This particular juridical status contrasts with the German concept of Schutznormakzessorietät (accessory to the protection norm), which presupposes that there always has to be an individual violation as a requisite for providing grounds to proceed upon. In the Trianel case, the CJEU has, in fact, held that European Union law was broken in not recognizing that an NGO could “rely before the courts, in an action contesting a decision authorising projects […] on the infringement of a rule flowing from the environment law of the European Union and intended to protect the environment, on the ground that that rule protects only the interests of the general public and not the interests of individuals”.31 The Court thereby wished to stress collective rights in environmental protection, extending the rights of legally recognised associations beyond the confines of national legislation, and letting these rights be enforceable in judgements.32

V. An Example of the Horizontal Circulation of Models In consideration of the comparative approach that has inspired this research, I would now like to mention an example of the horizontal circulation of models, following the thrust towards harmonization of international and European law which links the concept of participation to the guarantees agreed to in the AC. The AC was ratified by France in 2002. This led to the constitution of a “Commission Nationale du Débat Public” as an independent authority without normative or sanctionary powers and with mainly consultative and orienting functions. The

ronmental matters and modifies the Council directive 85/337/CEE and 91/61/CE regarding public participation and access to justice, OJ 25. 06. 2003, no. L/156. 28 § 2 Umwelt-Rechtsbehelfsgesetz of 8/4/2013 (BGBl. I, p. 753), as modified by art. 2 (52) of the law of 7/8/2013 (BGBl. I, p. 3154). 29 Case C-115/09, Trianel, ECR [2011] I-3673; Case C-72/12, Altrip, in: NVwZ 2014, p. 49 et seq. 30 Sec. 42 (2) VwGO (Verwaltungsgerichtsordnung – Code of Administrative Court Procedure), BGBl. I, p. 686, lastly modified by the law of 8/7/2014 (BGBl. I, p. 890). 31 Case C-115/09, Trianel, ECR [2011] I-3673. 32 Ziekow, p. 260 et seq.

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Commission was set up on the basis of the Environmental Charter33 which had obtained constitutional value in 2005 and which attributes in art. 7 the right of each individual to information and consultation as far as the environment is concerned.34 This instrument designed to realise démocratie de proximité (‘democracy of proximity’) foresees the holding of a débat public (‘public consultation’) on the opportunity, objectives, and main characteristics of projects of an environmental, territorial, landscape, social, and economic nature. It is a question of public policies that especially concern the life of people, since they are of importance in matters involving town and country planning, the ecosystem and social and health policies. The legislator of Regione Toscana35 was inspired by this participatory model when introducing the possibility of setting up deliberative procedures, thereby outlining a structural and not episodic participation. This meant, as in France, to carry through participatory projects, above all those of an environmental and planning nature, with the technical, financial and methodological contribution of the Region. Following the experimental character of this normative proposal, the Tuscan law has recently been updated and improved. It consists basically of two instruments for participation which are “regional public debate” concerning “works, projects or measures which have a particular importance for the regional community” (art. 7) to which local participatory processes on more minor changes are added. The temporal organisation of the phases within French public debate also seems to have greatly inspired the Tuscan legislator. In line with the French law (Loi Barnier),36 the public debate in Tuscany is divided into three periods consisting of a phase of examination of no more than ninety days, followed by the phase of the debate properly speaking of the same length. At the end of the proceedings, the person chairing the debate makes a final report of the results which the project head has, in a third phase, to duly take into consideration and declare within ninety days if he or she intends to abandon the project, modify it, or confirm it. Tuscany, as with France, fore33 Constitutional Law no. 2005 – 205 of 01/03/2005 on the “Charte de l’environnement“ (JORF no. 0051 2/3/2005, p. 3697). 34 “Toute personne a le droit, dans les conditions et les limites définies par la loi, d’accéder aux informations relatives à l’environnement détenues par les autorités publiques et de participer à l’élaboration des décisions publiques ayant une incidence sur l’environnement.”, cf. Beraud, p. 387 – 395. Among the projects for which public debate was held – as mentioned in the contribution – were: the Roissy-Picardy rail link, several wind farms, the enlargement of the ports of Calais and Le Havre, the Nonancourt-Dreux-Chartres-Allaines and Castres-Toulouse motorways, the Eridan and Arc de Dierry gas pipeline, the Ivry energy from waste plant and the development and regulation of nanotechnologies (ibid., p. 390). 35 Tuscany Regional Law no. 69, 27/12/2007, “Norme sulla promozione della partecipazione all’elaborazione delle politiche regionali e locali” (BUR no. 1, 03/01/2008), now replaced by Tuscany Regional Law no. 46, 02/08/2013, “Dibattito pubblico regionale e promozione della partecipazione all’elaborazione delle politiche regionali e locali” (BUR no. 39, 07/08/2013). 36 Law no. 95 – 101, 02/02/1995 regarding the increased environment protection.

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sees the intervention of an independent authority (Regional Authority for Guaranteeing the Promoting of Participation) entrusted with powers of admission and evaluation, but also “drawing up the orientation” aiming at making the participatory process uniform. In particular, the revision of the discipline of the regional public debate, has taken into account that during the period of the enactment of the previous law, such a procedure had never been used. In this regard, it moved away from the facultative activation of the procedure. Thus, the new regulation for public debate foresees, as in the French model, a classification of works which have the obligation to allow for public debate, as well as the definition of the financial thresholds beyond which public debate must necessarily take place.

VI. Concluding Remarks This contribution has stressed the various functional and structural problems that modern democracies find themselves confronted with. It is precisely here that it can be most clearly acknowledged, that as the example of environmental law univocally demonstrates, the fragmentation of state authority in the multi-level system and the consequent reduction of the independence of nation states take place. Decisions are taken at an international and supranational level, where citizens feel powerless and unable to exert their influence. This, in turn, leads to the democratic deficit of supranational and international institutions and the progressive erosion of an organisation based on the decisional power of single states. The multilevel system of the European Union also evidences a significant democratic deficit, which is determined to a major extent by the interweaving of competences with the consequent need to negotiate decisions, laid down by national administrations and bureaucracies. Legislative authority is attributed mainly to the Council of Ministers and thus consequently to national governments, despite the growing role assigned to the European Parliament under the Treaty of Lisbon. Given the preponderant weight of executive authority at an international and European level, it should be noted that democracy is going through a ’post-parliamentary’ phase.37 The deficit in democratic control by parliaments, a product of the allocation of decision-making processes to the international and supranational sphere, leads citizens to gain the impression that they have no say in matters of their concern in the interweaving strands that constitute the multi-level system. It is here that NGOs can assume a leading role in relations with civil society, as the example of the AC shows. This is the characteristic of participatory democracy, that, when facing the deficiencies of the representative system, constitutes, along with the instruments of direct democracy, a new source of political legitimation. These are democratic models that find their concrete expression in environmental law, owing their success precisely to the AC. They aim at the active participation of 37

See Crouch.

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civil society and are based on such notions as information, consensus, and responsibility. It is hoped to incentivise public discussion of delicate questions through recourse to associative and deliberative processes, thereby promoting the acceptance of decisions and the level of satisfaction with them. The procedures adopted to increase the participation of citizens in decision-making processes aim at promoting a better balanced representation of interests and to support political organisations in caring for common goods. The original aporia separating environmental protection and economic growth now appears to have been overcome by the paradigm of sustainable growth. The multi-sectorial and transversal conception of sustainability has led to the emergence of the recognition, that the solution to ecological problems necessarily requires a transformation of the social order and thus cannot be limited to the adoption of technical solutions to environmental problems without going back to the causes and structural elements in social engineering.38 Despite its recognition, it appears that the 2012 Rio di Janeiro United Nations Conference, which focused on the “green economy”, shifted the attention from the logic of sustainable growth to that of economic priorities. This radical interpretation presumes that the best way to protect nature would be to assign an economic value to it. The economic value would represent both the ideal instrument to guarantee environmental protection and the true and faithful objective of environmental policies.39 It is probable, in the wake of the global recession, the traditional ancillary function of environmental protection and social progress, following the mantra of a conjectural upswing will be re-proposed, albeit in a changed context. In this field, participatory democracy in environmental matters could pave the way for the transition of a society of bourgeois, which almost completely concentrates on its private interests, to a community of citoyens, which are committed to an equitable utilisation of common goods. References Benz, Arthur: Politikwissenschaftliche Diskurse über demokratisches Regieren im europäischen Mehrebenensystem, in: Huber, Peter/Sommermann, Karl-Peter/Bauer, Hartmut (eds.), Demokratie in Europa, 2005, p. 253 – 280. Beraud, Jean-François: Il caso della Francia: La Commission Nationale du Débat Public, in: Valastro, Alessandra (ed.), Le regole della democrazia partecipativa. Itinerari per la costruzione di un metodo di governo, 2010, p. 387 – 395. Bifulco, Raffale: Democrazia deliberativa, rappresentativa e partecipativa. Tre diverse forme di democrazia, in: Allegretti, Umberto (ed.), Democrazia partecipativa – Esperienze e prospettive in Italia e in Europa, 2010, p. 65 – 77. Bobbio, Luigi: Dilemmi della democrazia partecipativa, in: Democrazia e diritto 1/2006, p. 11 – 26. 38 39

Krüger, p. 437. Ibid., p. 450.

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Crouch, Colin: Post-Democracy, 2004. Donati, Daniele: Partecipazione come categoria, identità e rappresentanza. Ruolo e contraddizioni delle nuove forme associative, in: Valastro, Alessandra (ed.), Le regole della democrazia partecipativa. Itinerari per la costruzione di un metodo di governo, 2010, p. 141 – 188. Ekardt, Felix: Umweltverfassung und Schutzpflichten, in: Neue Zeitschrift für Verwaltungsrecht, Vol. 17, 2013, p. 1105 – 1110. Fraenkel-Haeberle, Cristina: Experimente der Bürgerbeteiligung in Italien, in: DMS 2/2013, p. 507 – 522. Gamper, Anna: Forms of Democratic Participation in Multi-level Systems, in: Fraenkel-Haeberle, Cristina/Kropp, Sabine/Palermo, Francesco/Sommermann, Karl-Peter (eds.), Citizen Participation in Multi-level Democracies, 2015, p. 67 – 84. Herzberg, Carsten/Cuny, Cécile: Herausforderung der technischen Demokratie: Bürgerhaushalt und die Mobilisierung von Bürgerwissen, 2007. Kahl, Wolfgang: Staatsziel Nachhaltigkeit und Generationengerechtigkeit, in: Die öffentliche Verwaltung, Vol. 1, 2009, p. 2 – 13. Krüger, Timmo: Das Hegemonieprojekt der ökologischen Modernisierung, in: Leviathan, Vol. 3, 2013, p. 422 – 456. Lakowski, Silke R.: Demokratisierung des Umweltrechts, in: Zeitschrift für Umweltrecht, Vol. 4, 2010, p. 171 – 181. Mattei, Ugo: I beni comuni, 2011. Ruffert, Matthias: Demokratie und Governance in Europa, in: Huber, Peter/Sommermann, Karl-Peter/Bauer, Hartmut (eds.), Demokratie in Europa, 2005, p. 319 – 348. Schmidt, Manfred G.: Demokratietheorien, Eine Einführung, 5th ed. 2010. Sommermann, Karl-Peter: Demokratiekonzepte im Vergleich, in: Huber, Peter/Sommermann, Karl-Peter/Bauer, Hartmut (eds.), Demokratie in Europa, 2005, p. 191 – 221. Winter, Gert: Ökologische Nachhaltigkeit, in: Zeitschrift für Umweltrecht, Vol. 7 – 8, 2013, p. 387 – 395. Ziekow, Jan: Das Umwelt-Rechtsbehelfsgesetz im System des deutschen Rechtsschutzes, in: Neue Zeitschrift für Verwaltungsrecht, Vol. 3, 2007, p. 259 – 267.

The Aarhus Convention Between Protection of Human Rights and Protection of the Environment By Claudia Sartoretti Abstract Il presente contributo intende esaminare la Convenzione di Aarhus dal punto di vista del rapporto fra la tutela dell’ambiente e la protezione dei diritti umani, mettendo in evidenza lo stretto nesso che lega l’una all’altra. Già a far tempo dal 1968, invero, la Risoluzione delle Nazioni Unite n. 2398 aveva messo in evidenza lo stretto legame che unisce l’ambiente con la protezione dei diritti (rectius, degli ‘altri’ diritti) umani, stabilendone un rapporto di interdipendenza, tale per cui qualsivoglia danno all’ambiente finisce per riflettersi sul pieno esercizio di alcune situazioni giuridiche fondamentali, prime fra le quali la tutela della salute e il diritto alla vita. In sostanza, l’ambiente diviene un presupposto fondamentale e indefettibile per la tutela di numerosi diritti umani, una interdipendenza, questa, che viene sancita espressamente dalla stessa Convenzione di Aarhus. A rafforzare la stretta interrelazione fra ambiente e diritti umani vi è poi il riconoscimento di un autonomo diritto alla tutela dell’ambiente salubre da parte di numerose Costituzioni nazionali, e a livello internazionale, per la prima volta, ad opera della Convenzione di Aarhus. A questo accordo va infatti il merito di aver evidenziato la necessità di codificare il diritto alla protezione dell’ambiente, diritto che viene preso in considerazione dal trattato non soltanto nel suo aspetto ‘sostanziale’ ma anche in quello “procedurale”, laddove il testo in esame dispone che gli Stati firmatari debbano garantire agli individui la possibilità di essere coinvolti nel processo di gestione dell’ambiente, mediante l’accesso all’informazione, la partecipazione ai processi decisionali e l’accesso alla giustizia (i così detti ‘tre pilastri della Convenzione’).

I. Introduction In recent years, the recognition of the link between human rights and the environment has greatly increased. The number and scope of international and domestic laws, judicial decisions and academic studies regarding the relationship between human rights and the environment have grown rapidly. From this point of view, the Aarhus Convention (AC), adopted on 25 June 1998, represents one of the first examples of environmental agreements which stated the link between human rights and the protection of the environment. In this convention, human rights and environment find mutual support for the recognition of their importance and their need to be protected as fundamental rights.

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Moreover, as seen from the history of the past forty years, the battles in the name of human rights and those for the environment have often coincided, mutually reinforcing each other1. Nevertheless, it is through the AC that the link between human rights and the protection of the environment has been stated explicitly, as shown in its preamble, where the right of every person of present and future generations to live in an adequate natural context finds its express recognition. Furthermore, the preamble of the AC also establishes clearly that the protection of the environment is essential to human well-being and to the enjoyment of basic human rights, including the right to life. At the same time, this international agreement recognises explicitly an essential right to a healthy environment, thereby strengthening the link between itself and human rights. In essence, the environmental protection is eventually dealt with in the same way as any other human right. In this way, the AC appears as a typical reflection of our civil societies’ values, which are based on the main idea of equal rights for all. In fact, for the first time in legal history, an international agreement codifies a right to environment and, at the same time, recognises a correlated duty to protect natural resources.

II. Historical Development In order to appreciate the novelty which characterises the AC, we have to remember that before the agreement in question was made, many other international environmental treaties have noted the bond between human rights and environmental protection, but none has actually recognised the right to a healthy environment. As has been observed, the Stockholm Declaration of 1972 – the starting point of the modern international framework for the protection of the environment – has inspired many constitutional provisions, which have codified a right to a healthy environment as a fundamental right, notwithstanding that the actual document makes no explicit reference to this right. The Stockholm Declaration has highlighted the relationship between the environment and human rights, affirming in its preamble that the “environment is essential […] to the enjoyment of basic human rights – even the right to life itself”. Nevertheless, it has failed to clearly affirm the right to a

1

The relationship between the quality of the environment and the enjoyment of basic human rights was first recognised by the United Nation General Assembly. The Resolution no. 2398, XXIII, 3 December 1968, (available at: http://www.un.org/documents/ga/res/23/ ares23.html.) pointed out that “the relationship between man and his environment is undergoing profound changes in the wake of modern scientific and technological developments”. It also stressed the consequent effects of the pollution of the environment “on the condition of man, his physical, mental and social well-being, his dignity and his enjoyment of basic human rights in developing as well as developed countries”.

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healthy environment as an independent substantive human right, thereby maintaining any doubts regarding its existence2. In the same way, a decade later, the Rio Declaration (1992) acknowledged the right to a healthy and productive life in harmony with nature, the right of access to environmental information, and the right of public participation in environment decision-making. There is no provision in this Declaration which recognises an explicit right to a healthy environment and the vague reference to live “in harmony with nature” tends to weaken the human rights dimension of environmental protection3. This approach to the international protection of the environment has not been changed over the years, firstly due to the resistance of developed countries to the recognition of a substantial and autonomous right to a healthy environment and secondly because of the difficulties to define its contents and limits, which consequently hinders a complete legal protection of the environment. In view of this, we can understand the reason why the AC is often lauded as a new kind of environmental agreement which has been able to achieve a perfect integration between human rights and environmental protection.

III. Perspectives on the Relationship Between Human Rights and Environmental Protection There are three different ways to explain the interrelationship between human rights and environmental protection. All of them can coexist and each one does not necessarily exclude the others. Among these approaches, we can find the recognition of a safe, healthy and ecologically-balanced environment as a human right in itself. The existence of an autonomous and fundamental right to protect natural resources is a question widely debated among researchers. However, many commentators4 have stressed the importance of the recognition of the right in question, pointing out the benefit of formulating a new human right to a healthy environment. According to this opinion, national courts have been capable of providing meaningful content to the right to a healthy environment in national constitutions and international tribunals have been able to articulate 2

Sohn, p. 423 – 515, argued that, for many aspects, the final text of the Declaration failed to improve the earlier versions (p. 451 – 455). This is, because “[d]irect references to the right to life itself and the right to a safe, healthy and wholesome environment have been omitted, though the former is at least mentioned in the first paragraph of the Preamble”. In the author’s opinion, “it would have been an important step forward if the right to an adequate environment were put in the forefront of the statement of principles, thus removing the lingering doubts about its existence” (p. 455). See also Colacino, p. 454 – 467. 3 Pallemaerts, Proceduralizing environmental rights, p. 14 et seq. 4 See for example: Boyle, Human Rights and the Environment: A Reassessment, p. 471 et seq.; Downs, p. 351 et seq.; Van Dyke, p. 323 et seq.; Shelton, p. 103 et seq.

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State responsibilities in connection with the environmental dimension of protected rights5. The acknowledgement of the environmental protection as a human right would ensure a direct, unconditional, and absolute defence to the environment just as every other fundamental right. At the same time, the need to provide a constitutional foundation – or a legal basis in international treaties – for the right for a healthy environment arises from the necessity to benefit from all those guarantees and protection mechanisms, which are the content and the essence of the fundamental charters. Basic laws represent a legal weapon capable of providing the different organs of the State with powers and control, regulating the rights and the faculties of the government formed to manage a democratic country6. In short, the constitutions specify and protect people’s rights by establishing limits to the discretionary power of the government. In fact, as we all know, a country cannot draw up a law that is not consistent with the constitution, which is the supreme source of national law. If a primary law – not in accordance with the higher order legal principles – is approved, it will be invalidated by a constitutional review authority. To return to the dimensions of the interrelationship between human rights and environment, we can identify two other requirements which explain the above-mentioned link. The first represents the environment as a pre-requisite necessary for the enjoyment of human rights: indeed, environmental degradation can affect and threaten the exercise of a right, such as the right to life, food, or health. The duty of the States to protect human rights can no longer disregard the defence of the environment as environmental protection represents an inescapable condition for the full enjoyment of human rights. The second approach, on the contrary, highlights how the use of human rights is important to achieve an adequate level of environmental protection. Certain human rights, in fact, can play a key role in the decision-making process in environmental issues such as procedural rights. The right of access to information, of participation in public affairs, and of access to justice, for example, are essential for the fulfilment of 5 See the analytical study on the relationship between human rights and the environment of the United Nations High Commissioner for Human Rights, available at: http://www.ohchr.org/ Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-34_en.pdf. 6 Many nations have included the right to a healthy environment in their constitutions. In Europe, for example, Portugal (1976) and Spain (1978) were the first countries which expressly recognised a fundamental right to a healthy environment. In 2005, the French Congress approved the Charter for the Environment while in 1987 the Italian Constitutional Court held that the right in question is to be considered implicit in other constitutional rights (such as the right to health, art. 32 Italian Constitution and the right to safeguard natural beauty, art. 9 Italian Constitution) and therefore enforceable. See for more details for example: Boyd, The right to a Healthy Environment, p. 67 et seq.; Boyd, The Environmental Rights Revolution. For the Italian doctrine, see Sartoretti, p. 337 et seq.

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political choices aimed at the full respect of the environment. These rights contribute to ensure a good governance where many and different stakeholders (government, NGOs, private sector, civil society), interacting with each other, take part in the process of rule creation and formulate policies in response to the need for adequate levels of environmental protection for a more sustainable future. Moreover, sustainable development is impossible without ensuring individual freedoms and protection of the environment. We cannot forget that often environmental degradation starts with a violation of human rights, such as the right to information or rather the right to be informed on the quality of the environment and on possible health risks caused by contaminated sites. At the same time, the impossibility to live in a healthy environment also violates other rights, such as the right to health and to food. This can even have negative consequences for children who, for example, cannot (or can no longer) gain access to education because their schools are built in polluted areas where access is forbidden7.

IV. Substantive and Procedural Environmental Rights In this framework, the AC represents a remarkable step forward in the advancement of international law and in political action aimed at a more sustainable development. Essentially, the AC intends to balance economic growth with environmental protection, so that the requirements of the present generation are satisfied without compromising the natural resources. In an attempt to get a correct compromise between the needs of the present generation and those of the future one, the AC focuses its attention on the importance of democratic participation in the debate in question and the consequent necessity of introducing and regulating public procedural rights. According to the Parties to the AC, access to information, public participation in decision-making, and access to justice are basic preconditions to guarantee the protection of every person of present and future generations to live in an environment adequate to his or her health and well-being. In short, we can deal with environmental matters through more effective tools such as participatory and informational rights. Public procedural rights could, in fact, help the public opinion in improving information and education, enhancing greater public scrutiny on decision-makers and enforcing the various stakeholders’ responsibilities. Summing up, the protection of the right to a healthy environment becomes ultimately an objective to which the AC aims to contribute through the fulfilment of specific obligations such as the respect to access to information, participation, and access to justice. That is to say, the AC recognises the right to a healthy environment but does not protect it as a distinct and abstract obligation. Rather, the AC prefers to defend the 7

See for example: Lador, p. 7 et seq.

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right to a healthy environment in its ‘procedural’ dimension, recognising that citizens have the right to be involved in decisions taken by institutions. Besides, as some authors observe, “the existence of individual procedural rights helps shape domestic environmental policy and facilitates the resolution of transboundary conflicts through equal access to the same private law procedures”8. Probably, one of the reasons for this particular choice is the difficulty to establish the contents of the right to a healthy environment which are – as known – as vague as the contents of many other so called “third generation rights”9. The vagueness of the contents of the legal claim to the protection of the environment renders its enforcement difficult. The notion ‘environment’ itself can hardly be defined, even if it is generally qualified by adjectives such as ‘adequate’, ‘satisfactory’, ‘healthy’ and ‘ecologically balanced’. In the presence of the difficulty of translating the right in question into a concrete meaning needed to ensure its immediate legal consequences, the AC has introduced various procedures by which the environment can be protected in a substantial and real way. As with any other right, the right to a healthy environment is therefore guaranteed through its legal implications, each of which coincides with duties of the State towards citizens. Moreover, the previsions of procedural rights such as access to information, access to justice and public participation in the decision-making process, emphasizes the role of citizens not as passive beneficiaries but as partakers of responsibilities in the formation of all community interests. Should this not be sufficient, the AC has promoted public participation in environmental decisions by means of the transformation of some principles on human rights and environment, into real rights codified in the AC itself. For this reason the AC is not considered just as an environmental agreement but more widely, as a Convention about government accountability, transparency and responsiveness10.

V. The Convention of Aarhus: a Particular ‘Convergence’ Between Environmental Protection and Defence of Human Rights The Convention represents a remarkable achievement not only with regards to the protection of the environment but also in reference to the promotion and safeguard of

8

Birnie/Boyle, p. 197. See for more details: Kiss, p. 1 et seq.; Fitzmaurice, Public participation, p. 333 et seq.; Fitzmaurice, Human rights, p. 305 et seq. 10 Stec/Casey-Lefkowitz, p. 1. 9

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human rights. In fact, the agreement touches on, more in general, the fundamental issues of democracy, in addition to the rights of people to protect their well-being. The Aarhus principles come from the Principle 10 of the Rio Declaration and from the program of the United Nations Agenda 21, both of which underline the importance of the role of the public and the NGO sector in environmental decision-making. In particular, Principle 10 of the Rio Declaration states the importance of having access to environmental information and sharing the decisional process, explicitly asserting that: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” On the other hand, the Agenda 21, adopted during the Rio Conference of 1992, establishes the need to involve local authorities in sustainable development policies. In the wake of these two legal instruments, the AC focuses its attention on the importance of information and public participation as a condition without which we cannot guarantee the quality and transparency of decisions. Through the codification of the right of access to information, the right to public participation on certain decision-making processes that could have an impact on the environment, and the right to access courts of law or tribunals in environmental matters, the AC has sought to create an environmental governance network. The Convention’s aim is in fact that of building up a “governance by disclosure”11 leading toward a society which is more aware of the need to implement and enhance the tools of environmental protection12. More specifically, transparency – expressed as information disclosure – becomes a condition for an accountable, legitimate, and real democratic governance. A strong public participation in governance is an effective antidote for stemming abuses of power in the public sector, especially in the enforcement of environmental laws. As has been noticed, the AC has the merit of providing citizens with both the access to government-held information and the right to the amelioration of environmental conditions. The 1998 AC, binding in more than forty nations in Europe and Central Asia, represents the first multilateral treaty to specifically denote a new human right to government information about the environment. In this way, the AC can serve 11

Gupta, p. 1 et seq., uses this expression to represent a growing number of regulatory forms (mandatory and voluntary) animated by assumptions of due process and empowerment through information. 12 Gupta/Mason, p. 22 et seq., p. 87 et seq., p. 337 et seq.

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as a model for the world’s nations at large because citizen oversight of government actions towards natural resources is a powerful tool for those concerned about both the environment and government transparency13. Some authors, examining the content of the AC, spoke about a sort of “convergence of various human rights philosophies”14. The recognition of the complex right of an informed people to participate in the environmental decision-making process appears, in fact, as a sort of meeting point between two distinct legal claims: the right of citizens to be involved in a decision related to the environment in which they live and the right to the protection of a healthy environment. Both are connected with the protection of another human right: the right to health. In this way, the codification of the right in question strengthens the linkage between environmental and human rights concerns and, at the same time, encourages greater public attention in order to foster pressure on governments to act. Besides, an effective environmental policy against the deterioration of the natural resources is the necessary condition to fully benefit from our human rights15, and procedural human rights can clearly facilitate and advance any effort for protecting all of them. Even the European Court of Human Rights (ECtHR), in many occasions, admitted the strict relationship between the right to environmental information and the protection of other human rights. Many decisions, in fact, refer expressly to the AC and mention this agreement as international law to be applied to resolve cases brought before the Court. What is more, the ECtHR cited the Aarhus provisions as a specific aspect of art. 10 European Convention on Human Rights (ECHR) (Right to express a proper and informed opinion) and art. 8 ECHR (Right to the respect of family and private life). In several cases16, the right to private life was used to compel the governments to regulate environmental risks, enforce environmental laws, and disclose information17. In Tatar v. Romania18, for example, the ECtHR unanimously found a violation of the right to private and family life (art. 8 ECHR) on account of the Romanian author13

Kramer, p. 73 et seq. Cramer, p. 73 et seq. 15 Perrez, p. 4 et seq. 16 Lopez Ostra v. Spain, no. 16798/90 (1994), 20 EHRR 277; Guerra v. Italy, no. 14967/89 (1998), 26 EHRR 357; Fadeyeva v. Russia, no. 55723/00 (2005) ECHR 376; Öneryildiz v. Turkey, no. 48939/99 (2004), ECHR 657; Taskin v. Turkey, no. 46117/99 (2004), ECHR, paras. 113-9; Tatar v. Romania, no. 67021/01 (2009), ECHR, para. 88; Budayeva and others v Russia, no. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 (2008) ECHR. 17 Boyle, Human Rights and International Environmental Law; Kravchenko/Bonine; Falletti. 18 In Tatar v. Romania, p. 16, the applicants Vasile Gheorghe Tâtar and Paul Tâtar lived approximately 100 metres from a gold mine in Baia Mare, Romania. The operators of the mine were authorized to use certain hazardous substances, including cyanide, in the mining 14

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ities’ failure to defend the right of the applicants, who lived next to a gold mine, to enjoy a healthy and protected environment. This case is another important environmental law case of the Court, which pointed out that authorities had to ensure public access to the conclusions of investigations and studies. The Court, in particular, reiterated that the State had a duty to guarantee the right of members of the public to participate in the decision-making process concerning environmental issues. In particular, the European judges underlined that the failure of the Romanian Government to inform the public, in particular by not making public the 1993 impact assessment on the basis of which the operating licence had been granted, had made it impossible for members of the public to challenge the results of that assessment. The Court further noted that this lack of information had continued after the accident of January 2000, despite the probable anxiety of the local people. It should also be added that even the Court of Justice of the European Union (CJEU) has previously applied the provisions of the AC. In two cases19, the Luxembourg Court decided that the terms of the AC prevailed over the EU’s own regulation as to access to information, public participation and access to justice within the European Union institutions. The Court has outlined that by ratifying the AC in 200520, the EU (at that time the European Community) took upon itself the obligation to ensure that members of the public have access to administrative or judicial procedures to challenge acts and omissions by EU institutions which contravene provisions of EU law relating to the environment21.

VI. Conclusions Having regard to the foregoing, it should be noted more generally, that most international treaties implement environmental protection by establishing quality standards of natural resources that States have the duty to respect.

process although the authorization permit placed them under a general duty to protect the environment. Nevertheless, the applicants claimed that the operation of the mine had caused a violation of their rights under the ECHR because it entailed serious risks to human life and health. The case is another important environmental law case of the ECtHR: it further specified the State’s duties in the realms of precaution and public information. 19 See: Stichting Natuur en Milieu and Pesticide Action Network Europe v. European Commission, T-338/08; Vereniging Milieudefensie, Stichting Stop Luchtverontreiniging Utrecht v Commission, T-396/09. 20 The Convention on access to Information, Public participation in Decision-Making and Access to Justice in Environmental Matters was signed by 35 member states of the ECE and by the European Community at the Environmental conference in Aarhus on 25 June 1998. It has to be said, however, that although the Convention was negotiated in a pan-European forum, it was not conceived as an exclusively European instrument, as it is open for accession by any member state of the United Nations upon approval by the meeting of the Parties. 21 Pallemaerts, Compliance by the European Community, p. 1 et seq.

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The AC, on the contrary however, takes a different approach to environmental protection, providing that States should ensure every person the possibility to be involved in the environmental management process through access to information, participation in decision-making and access to justice. This will give people the opportunity to play an active part in the management of environmental problems, as a support or, if necessary, as a substitute to the competent institutions. For this reason, the AC is considered the first multilateral environmental agreement whose main purpose is to impose on its contracting parties a series of obligations towards their own citizens. In this regard, it has been noted22 that there is a certain affinity between the agreement in question and international human rights law. This similarity emerges from provisions of the AC which for the first time in international environmental law establish a mechanism for reviewing compliance with the agreements standards23 that “shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention” (art. 15 AC). The arrangements for reviewing compliance allow individuals to communicate concerns about a Party’s compliance directly to a committee of international legal experts empowered to examine the merits of the case (the Aarhus Convention Compliance Committee). Nevertheless, the Compliance Committee cannot issue binding decisions, but can make recommendations to the full Meeting of the Parties (MoP). By providing a series of citizens’ rights of a procedural nature in relation to the environment, the signatory States intended to encourage a ‘responsible environmental citizenship’, recognizing that “an engaged, critically aware public is essential to a healthy democracy”24. In these terms, the AC marks a step forward in coordinating efforts of the Parties to promote democratic values, transparency, and human rights in the field of environment. The type of democracy promoted by the AC is clearly a participatory democracy. Whereas representative democracy involves the periodic vesting of authority by the electorate in a small group which makes decisions on behalf of the populace as a whole, participatory democracy implies an ongoing participation by the people in decision-making processes. Both ideas of democracy are not in conflict with each other. Rather, participatory democracy supports and complements the representative democracy. All the measures introduced in the agreement have the purpose to achieve a sustainable development. However, it should be noted, that in contrast with the policies 22

Pallemaerts, Proceduralizing environmental rights, p. 19. See for example, Koester, p. 83 et seq. 24 Declaration by the Environment Ministers of the Region of the United Nations Economic Commission for Europe (UN/ECE), 4th Ministerial Conference “Environment for Europe”, Aarhus, Denmark, 23 – 25 June 1998, para. 40. 23

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of international institutions, there is not one model of development universally applicable to all cultures and people. What constitutes ‘development’ is largely subjective, and in this respect development strategies must be determined by the people themselves and adapted to their particular conditions and needs. Therefore, the participation of individuals and NGOs becomes the primary mechanism for identifying appropriate goals and criteria for the development process. In essence, the right to development is not only a right to the improvement of material conditions, but also a right to have a voice in, and share control over, the economic environment. To conclude, the AC appears to be an innovative tool, whose significant scope, both for the environmental protection and for the promotion and the defence of human rights, potentially extends also beyond the boundaries of the European Union. As the former Secretary-General of the United Nations Kofi Annan has made clear, “the Convention is the most ambitious venture in environmental democracy undertaken under the auspices of the United Nations”25. Unfortunately, in spite of the AC’s innovative scope, the application of its provisions has not always been satisfactory. In Italy, for instance, the enforcement of the AC has been fragmentary and not always efficient, as for example in the recent case of ILVA (the Italian steelworks establishment), which was accused of being a big source of dioxins and other cancer-causing chemicals. Here, the environmental group Taranto Futura has claimed that the Italian government did not enact the law impartially but rather in favour of the steel industry ILVA of Taranto26. In this case, as in many others, the misuse of the extraordinary power of the commissioners of these companies should be noted. These authorities are not always a guarantee of a proper administrative control and of a correct use of ‘emergency’ rules in the act of environmental management27. On the contrary, as it has been stressed, claiming reasons of ‘public safety’ and ‘public order’ ought to be balanced by the use of the principles of reasonability and appropriateness for protecting the collective environmental interest of the people. Besides, this is the main scope of the AC: i. e. to balance the interests of people, the environment and the market establishing a more democratic, transparent, and inclusive relationship between citizens and public authorities.

References Attardi, Raffaele/Bonifazi, Alessandro/Torre, Carmelo M.: Evaluating Sustainability and Democracy in the Development of Industrial Port Cities: Some Italian Cases, available at: www.mdpi.com/journal/sustainability. 25 Foreword to the Implementation Guide to the Aarhus Convention, United Nations, 2000, available at: http://www.unece.org/fileadmin/DAM/env/pp/acig.pdf. 26 Attardi/Bonifazi/Torre. 27 See for more detailed analysis: Falletti.

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Birnie, Patricia/Boyle, Alan: International law and the environment, 1992. Boyd, David Richard: The right to a Healthy Environment: Revitalizing Canada’s Constitution, 2012. – The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment, 2012. Boyle, Alan: Human Rights and International Environmental Law: Some Current Problems, available at: http://www.eui.eu/Documents/DepartmentsCentres/Law/ResearchTeaching/ WorkingGroups/08-03-HumanRights.pdf. – Human Rights and the Environment: A Reassessment, in: Fordham Environmental Law Review, 2007, p. 471 – 511. Colacino, Nicola: Exploring the legal nature of the States’ obligation to provide information to the public in the case of an imminent threat to the environment: more than beside of the individual right to access?, in: Ordine internazionale e diritti umani, 2014, p. 454 – 467. Cramer, Benjamin V.: The Human Right to Information, the Environment and Information about the Environment. From the Universal declaration to the Aarhus Convention, in: Communication, Law & Policy, 2009, p. 73 – 103. Downs, Jennifer A.: A Healthy and Ecologically Balanced Environment: An Argument for a Third Generation Right, in: Duke Journal of Comparative & International Law, 1993, p. 351 – 385. Falletti, Elena: The Aarhus Convention and the Democratic Involvement in Environmental Issues: the Italian Case, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 2411318. Fitzmaurice, Malgosia: Human rights and the environment – right to a clean environment, in: Recueil des Cours de l’Academie de l’Hague, 2001, p. 305 – 325. – Public participation in the North American Agreement on Environmental Cooperation, in: International & Comparative Law Quarterly, 2003, p. 333 – 368. Gupta, Aarti: Transparency Under Scrutiny: Information Disclosure in Global Environmental Governance, in: Global Environmental Policy, 2008, p. 1 – 7. Gupta, Aarti/Mason, Michael, M.: Transparency in Global Environmental Governance, 2014. Kiss, Alexandre: International human rights law and environmental problems, available at: http://archive.unu.edu/unupress/unupbooks/uu25ee/uu25ee0k.html. Koester, Veit: The Compliance Committee of the Aarhus Convention. An Overview of Procedures and Jurisprudence, in: Environmental Policy and Law, 2007, p. 83 – 96. Kramer, Benjamin W.: The Human Right to Information, the Environment and Information about the Environment: from the Universal Declaration to the Aarhus Convention, in: Communication, Law & Policy, 2009, p. 73 – 103. Kravchenko, Svitlana/Bonine, John E.: Interpretation of Human Rights for the Protection of the Environment in the European Court of Human Rights, available at: www.mcgeorge.edu. Lador, Yves: The challenges of human environmental rights, in: UNEP for the Geneva Environment Network (ed.), Human Rights and the Environment Proceedings of a Geneva Environment Network roundtable, 2004, p. 7 – 13.

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Mason, Michael: Information Disclosure and Environmental Right: the Aarhus Convention, available at: http://eprints.lse.ac.uk. Pallemaerts, Marc: Proceduralizing environmental rights: the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters in a Human Rights Context, in: UNEP for the Geneva Environment Network (ed.), Human Rights and the Environment Proceedings of a Geneva Environment Network roundtable, 2004, p. 14 – 22. – Compliance by the European Community with its Obligations on Access to Justice as a Party to the Aarhus Convention, available at: http://law.uoregon.edu/org/oril/docs/15 – 1/Palle maerts.pdf. Perrez, Franz: Key, questions concerning the human rights and environment debate. An introduction, in: UNEP for the Geneva Environment Network (ed.), Human Rights and the Environment Proceedings of a Geneva Environment Network roundtable, 2004, p. 4 – 7. Sartoretti, Claudia: La tutela dell’ambiente nel diritto comparato: modelli costituzionali a confronto, in: Ferrara, Rosario/Sandulli, Maria Alessandra (eds.): Trattato di diritto ambientale, 2014, p. 337 – 398. Shelton, Dinah: Human Rights, Environmental Rights and the Right to Environment, in: Stanford Journal of International Law, 1991, p. 103 – 138. Sohn, Louis B.: The Stockholm Declaration on the Human Environment, in: Harvard International Law. Journal, 1973, p. 423 – 515. Stec, Stephen/Casey-Lefkowitz, Susan: The Aarhus Convention: An Implementation Guide, UN/ECE, UN Publication, 2000. Van Dyke, Brennan: A Proposal to Introduce the Right to a Healthy Environment into the European Convention Regimen, in: Virginia Environmental Law Journal, 1994, p. 323 – 354.

Participatory Rights and the Notion of Interest in Environmental Decision-making: a Theoretical Sketch and Some International Legal Considerations By Paolo Turrini Abstract Mentre, sullo sfondo della Convenzione di Aarhus, si moltiplicano gli appelli politici, le prese di posizione istituzionali e gli sforzi giudiziali in tema di partecipazione del pubblico alla presa di decisioni in campo ambientale, la nozione di interesse su cui questa partecipazione si basa rimane fondamentalmente ignorata. Eppure, la comprensione di chi, tra il pubblico, può dirsi legittimo portatore di interesse è evidentemente una questione di primaria importanza. Il presente contributo intende dunque fornire qualche coordinata teorica in merito al concetto di interesse. Partendo dal presupposto che, in potenza, qualsivoglia posizione giuridica può essere fatta discendere dalla presenza di un interesse, l’attenzione è posta proprio su quest’ultima nozione, che viene analizzata sia indipendentemente, sia in relazione con alcuni dei fattori – giuridici oppure no – che contribuiscono a determinare la platea dei titolari del diritto alla partecipazione. Lo scopo principale è quello di capire quale sia l’estensione di tale categoria di soggetti, mostrando che essa dipende in larga misura da due prospettive che possono essere definite “culturali” – l’idea di ambiente (o natura) e quella di decisione ambientale – e sulle quali la dottrina non ha probabilmente riflettuto a sufficienza. Lo studio del concetto di interesse, pur condotto su basi sostanzialmente speculative, nel saggio trova numerosi appigli reali nel diritto interno di vari Stati e nel diritto internazionale; a quest’ultimo viene peraltro dedicata una breve sezione che intende dar conto del modo in cui esso approccia oggi il diritto alla partecipazione (in particolare degli attori non statali), e del modo in cui potrebbe farlo nel prossimo futuro qualora il discorso sulla necessità di dare concretezza giuridica all’idea di beni comuni, da un lato, e quello sull’esigenza di un maggior coinvolgimento dei soggetti interessati nella presa di decisioni ambientali, dall’altro, riuscissero ad affermarsi e a fecondarsi reciprocamente.

I. Introduction Irrespective of the position – supportive, critical or mixed – one is inclined to take on the issue of public participation in decision-making processes, the fact remains that in political circles at both national and international levels the chorus ‘participation is good’ has become a mantra. Words like ‘consultation’ and ‘participation’ have almost attained a magical status, and are abundantly mentioned in policy state-

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ments and legislative acts as if to apotropaically repel any spectre of illegitimacy. Those who once were seen as opportunistic lobbyists are now considered as immune carriers of reasonable interests.1 However, since the notion of interest has become the main door for admitting nonstate actors into participation, one should investigate this notion in order to understand how its usage can design the constituency of participants. This short contribution aims at doing just this. Even though, for obvious reasons, the Aarhus Convention will be a recurrent reference point of this study, the analysis – the purpose of which is to briefly sketch a theory of interest-based participation – will draw from many sources, ranging from legal instruments to judgments, to legal doctrines and theories. This eclectic approach will serve the author in defining the realm of possibilities that is beyond a single legal text, and that represents the scenario in which both the lawmaker and the interpreter find themselves when they, respectively, phrase a provision on participation and confer a meaning to it. The essay is structured as follows. Section II. frames the topic and clarifies the terminology. Section III. tries to shed some light on the concept of interest-based attribution of participatory rights. Section IV. shows how this kind of attribution does not, in itself, clearly identify a class of beneficiaries (i. e. potential participants), since a number of other factors come into play to set the boundaries of this category. Before concluding, international law will be addressed as to interests and participatory rights (Section V.).

II. Preliminary Remarks on the Concept of Participation Before starting, a couple of elucidations are due. The first relates to the notion of decision-making. In this article it is defined as to include any kind of process that results, or may result, in the taking of a decision. Thus, the expression refers not only to law-making procedures, but also to the judicial application of the ensuing legal provisions, and even to the provision of information capable of influencing the outcome (if any) of the process. All of these activities have the power to shape the final decision. Moreover – and this is the second concept deserving of clarification – all these activities can take place within the boundaries of the State, as well as outside of it. However, no clear distinction can always be drawn between international and domestic environmental decision-making. When one thinks, for example, of a transboundary environmental impact assessment carried out in accordance with the rules set by the Espoo Convention (or any other treaty providing for public participation), the decision that triggers the assessment is a domestic one, but, on the one hand, its effects go beyond the national boundaries and on the other, the participatory 1 Inside EU institutions, in the past few years, “actors which previously were classified as interest groups became the beacon of hope for democracy”, Kohler-Koch, p. 13.

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requirements that have to be complied with – and that are part and parcel of the decision-making process – come from an international legal instrument. Similarly, nonstate actors can take part in the negotiation of an international convention, moulding the capacity of a State to take domestic (as opposed to international) decisions: thus they influence, through international lobbying, the State’s margin of discretion in crafting its domestic policies. Ultimately, the two realms often intertwine. This caveat is to be kept in mind even if, in the following pages, reasons of simplification will sometimes call for an inaccurate use of terms. That said, it is a fact that many and diverse are the instances2 of non-state actors participation in the field of environmental policies – and politics – with the international community acting in different capacities, both prescribing public participation at the domestic level and accommodating non-state actors in international fora. For example, efforts have been made by the Council of Europe3 and the European Union4 to strengthen the participation of individuals and their representatives in their decision-making processes. Non-state actors also have a voice in treaty-making activities,5 and their position in international judicial or quasi-judicial procedures is growing (this is particularly true for NGOs6): in fact, they may be allowed to bring a claim before compliance committees7 and also before ordinary international courts.8 They may even play a role in the forcibly and direct enforcement of international environmental norms.9 However, there is still room for a greater involvement of these actors in international environmental decision-making.10 This improvement is not only quantitative – i. e., relating to the number of decisions open to participation or of subjects permitted to speak up – but also, and especially, qualitative. As noted above, a significant difference exists between the case when interest groups play as local actors and the case when they play as international actors. In the latter case, they almost invariably have no right to take part in international decision-making; in most cases, participation is a mere concession on part of the community of states or a suprana2

See for some general examples on the formation and implementation of law: Bodansky, p. 128 – 129, p. 132 – 134. 3 Steering Committee for Human Rights, Final Activity Report: Human Rights and the Environment, CDDH (2005) 016 Addendum II, Appendix II, Chs. IV to VI. 4 On EU law in general, see Peters, B. For a declaration of intent by the European Union on its work methodology, see Commission of the European Communities: Towards a reinforced culture of consultation and dialogue – General principles and minimum standards for consultation of interested parties by the Commission, COM (2002) 704 final. 5 See Drumbl, p. 11 – 14. 6 The most complete and, as of today, recent study is to be found in Zengerling. 7 See Koester/Young, p. 399 – 400. 8 See Pedersen, p. 551 – 552. 9 See, e. g., Eilstrup-Sangiovanni/Pelphs-Bondaroff; Nurse. 10 This is true for any international legal regime dealing, directly or not, with environmental matters. However, the regimes dealing with them indirectly are perhaps those which would benefit most from opening to environmental concerns. The usual example is the WTO: see Charnovitz (with many references to environmentalism).

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tional body. In the domestic setting, on the contrary, participation is often granted on the basis of an interest (even if, possibly, through the intercession of an international norm).

III. Interest-based Attribution of Participatory Rights When international environmental decision-making is concerned, non-state actors are usually seen as occasional guests and not as landlords. They are sometimes allowed to participate but seldom can claim a right to do so – hardly ever, in the case of law-making activities. Individuals take part in the bargaining of treaties only in their capacity as invited independent experts, and NGOs – be they promoters of the international conference, consultants to governments, or public interest organisations – are just disposable partners. The same applies to the ambit of access to information, given that negotiations may be concealed – and so may be the relevant documents, which can easily be disguised under national security laws. Perhaps, the intervention in front of a supranational judge or even the initiation of a judicial proceeding offer more chances to non-state actors, but in most cases they will have to suffer damage in order to have a right to standing, since the admission of amici curiae is almost always left to the discretion of the court.11 Discretion is indeed what makes a difference. In fact, even on those rare occasions when a right is granted to participate in the decision-making process – as is the case, for example, when an NGO gains consultative status in the United Nations Economic and Social Council,12 so that it can act as an advocate for environmental causes – the equality of conditions for two non-state actors will not necessarily prevent a disparity of treatment. In the absence of stable criteria aimed at regulating the attribution of participatory rights, one could be accepted and the other dismissed, even by the same decision-taker. This is something that cannot happen in the case of an interest-based attribution of rights. 1. The Notion of Interest-based Participation An interest-based attribution of participatory rights is the concession of a right to participation to a class of subjects (natural and/or legal persons) that share common features or conditions. Every and each of these subjects is entitled to stand in fora where decisions are taken if the others are too; thus, if one is not, no one is (simul stabunt vel simul cadent). However, these groups may be addressed by a right-granting provision through the use of broad categories that gather more than one group at a time, so that ‘delisting’ one of them will not result in the loss of rights of the other(s). 11

With a heavy dose of optimism: Peters, A. (p. 159 – 161) sees in these rights to judicial participation a sort of inchoate law-making power. 12 Currently, almost four thousand NGOs have this status, and some of them promote environmental campaigns.

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In fact, laws and treaties assuring participatory rights on the basis of interest resort to a variety of expressions, some of them quite narrow and definite, some rather vague and capable of comprising the other ones. For instance, a provision might grant participatory rights to ‘the public’, ‘the interested public’, ‘the public concerned’13, the ‘public in the areas likely to be affected’14 by the decision, to ‘stakeholders’15, to those ‘affected’, ‘impaired’16 or ‘damaged’ by the decision, or even to the ‘users’17 of a service which is the object of a decision. Although some of these notions are evidently more porous than others and thus one could be tempted to put them in a continuum from the most to the least precise – which is certainly possible – it must be underlined that the mere fact that a more general category (i. e., ‘interested public’) is in principle able to contain a less specific one (i. e., ‘affected public’)18 does not mean that, when applied, the former will empower more actors than the latter.19 It all depends on how the relevant legal text and context are interpreted.20 2. The Practical Use of the Notion On this point, it is worth noting that any of the aforementioned expressions may be further qualified to limit their scope. For example, the group of ‘concerned ones’ would shrink if one were to consider just those of a particular gender.21 Moreover, 13

See the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, art. 2 (4) and (5) AC. 14 See the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention), art. 2 (6) Espoo Convention. 15 Although, to my knowledge, no binding convention granting environmental participatory rights makes ‘stakeholders’ its right holders, the word is recurrent in policy statements, soft law instruments and in literature. See, e. g., the recent note of the Secretariat of the UN Framework Convention on Climate Change, Report on good practices of stakeholder participation in implementing art. 6 of the Convention, FCCC/SBI/2014/3 (art. 6 reads: “The Parties shall promote […] public access to information [and] public participation”). 16 Aarhus Convention, respectively art. 2 (5) AC (‘affected’) and art. 9 AC (‘impaired’). 17 E.g., the EU Water Framework Directive (Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy) speaks of the “public, including users” (Preamble and art. 14). 18 This is why, hereinafter and whenever the context does not suggest otherwise, the terms ‘interest’ or ‘interested’ will be used as general labels comprising any kind of attribution which is not strictly non right-based. 19 It goes without saying that the same is true with reference to the non interest-based attribution of rights, which, in principle, could select a number of right holders greater than that identified by the most liberal interpretation of the concept of interest. 20 Even without wholeheartedly espousing the indeterminacy thesis, one cannot deny that it is impossible to draw, in abstracto, the boundary lines of any such expressions. For instance, although seemingly uncontroversial, even the notion of ‘users’ can reveal to be context-dependent: see Barnes. 21 The Preamble of the Convention on Biological Diversity calls for the “full participation of women at all levels of policy-making and implementation for biological diversity conser-

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this qualification could be the only express criterion on which to base the entitlement of participatory rights, leaving the other one, crucial but implicit, to the determination of the interpreter. One may think of a convention requiring the participation of indigenous peoples under certain circumstances, without specifying, however, how the choice of beneficiaries is to be made.22 All in all, this concerns the usual interpretive activity pertaining to the application of any rule – an activity whose difficulty depends on the number of variables at stake and, in this case, on the vagueness of many categories used to link those entitled to a right to participate in the decisionmaking process and the process itself. In fact, this is the function of an interestbased attribution of participatory rights, and interest is the most general kind of connection that can be established between the decision and the subjects allowed to have their say in it. An interest of some sort can always be found, and this is why it is important to outline the categories of factors influencing the class of interest bearers.

IV. Factors Affecting the Class of Interested Parties The interest-based attribution of rights to a group of people does not, per se, determine who belongs to that group, because the provision or instrument granting ‘participatory rights in environmental decision-making to the interested public’ is, in itself, too vague to allow to precisely identify the right holders. In fact, their features depend on a number of factors that somehow impact on the right to participation, either by directly influencing the scope of the notion of interest, or by hindering the possibility to use it as a ground for claiming participatory rights. Many of these factors have at their basis questions which cannot be eschewed, since putting them aside would mean to leave the boundaries of the community of interest undefined; some vation”, and thus, notwithstanding its non-binding nature, goes well beyond art. 14 (1) (a), which allows for public participation only in environmental impact assessment procedures. 22 The UN Declaration on the Rights of Indigenous Peoples reads: “States shall provide redress through effective mechanisms, […] developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent” (art. 11). Who are the peoples whose consent was necessary and who have now to be involved in the taking of a decision relating to the proper way of redress? Given that the provision deals with immaterial goods such as cultural and spiritual property, the group of the dispossessed can be construed very differently, depending on how culture and spirituality are conceived. Moreover, to prove the major complexity of the topic, it is up to the interpreter to decide whether an expression must be deemed to have an “interestbased attribution” value, and which one. In the art. 11 scenario, are the words “indigenous people” to be interpreted so as to grant participatory rights to, say, a member of the community who does not share the dominant culture? Should the expression “indigenous people” be understood in this rigid sense, it would imply a consequence similar to that entailed in footnote 14 and the interest would come attached to the community membership. On indigenous participatory rights see Public Interest to Environmental Protection and Indigenous Peoples’ Rights: Procedural Rights to Participation and Substantive Guarantees (Federica Cittadino), in this volume, p. 73.

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others (as the factors listed under point 4.), on the contrary, lay on contingent grounds and their coming into play is just possible. It is useful to highlight that the problems underlying these factors may find multiple solutions in the same legal instrument, as this may address, at the same time and in different ways, a number of diverse interest bearers. The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (AC) exemplifies this when it comes to describing the notions of ‘decision-making’. In fact, the very expression ‘environmental decision-making’ is problematic, and can be split into three parts as follows. 1. What is Decision-making? In general terms, any kind of decision-making may entail the involvement of its own participatory-right holder(s), or even no right holder at all. Under the AC, different kinds of participatory rights are attached to access to environmental information, participation in stricto sensu decision-making, and access to justice.23 As to the second category, the AC further distinguishes between three types of decision-making processes – on the basis of the legal nature of their outcome – and shapes participatory rights differently according to the relevant case.24 For example, when a legislative act is concerned no right whatsoever is recognised by the AC, which limits itself to urge the Parties to ‘strive to promote’ public participation25 – a wording that denounces the programmatic nature of the right involved. This is a meaningful limit, since many important decisions on environmental matters are taken as legislative acts, possibly without a proper discussion prior to their enactment. Moreover, other ways to circumscribe the concept of decision-making may be envisaged: for example, one could ask

23 Access to environmental information is regulated by art. 4 AC, participation in decisionmaking by art. 6 – 8 AC and access to justice by art. 9. Art. 4 AC may be invoked “without an interest having to be stated”, while art. 6 – 8 AC have multiple legal bases for participation (see footnote 24) and art. 9 AC is triggered by a public “having a sufficient interest” and “maintaining impairment of a right”. 24 Art. 6 AC (Public participation in decisions on specific activities) speaks of the “public concerned”, art. 7 AC (Public participation concerning plans, programmes and policies relating to the environment) simply refers to the “public”, as does art. 8 AC (Public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments). See also English. 25 Art. 8 AC. The reason for this is probably twofold. On the one hand, irrespective of the notion of interest one is willing to choose, the interested public of a legislative measure (especially if taken at the national level) would be too large to be granted a binding and intrusive right to participation without serious political consequences. On the other hand, it is presumed that participation to legislative decision-making is already secured through ordinary democratic (i. e., electoral) procedures: that this should happen “in theory” is recognised by Ebbesson/Gaugitsch/Miklau/Jendros´ka/Stec/Marshall, p. 49.

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whether the AC applies only to public decision-making or its scope is to be extended also to environmental decisions taken by private actors.26 2. What is the Environment? The concept of environment may seem, prima facie, sufficiently clear, but a deeper reflection leads us to understand how difficult it is to conceptually frame that notion in philosophically sound terms.27 Of course, a lawyer is not required to become a philosopher, but the fact cannot be denied that sometimes he/she is asked to confront with questions whose resolution presupposes a conceptual boundary-setting. How far can mankind go in reshaping nature for it to be considered still ‘natural’? Is a decision concerning a natural landscape designed by humans, or even a historic building harmoniously nestled in a natural setting, an environmental one? Some courts have taken a progressive stance extensively construing the notion of the environment:28 a move that correspondingly enlarges the group of interest bearers. 3. What is Environmental Decision-making? Although it might sound paradoxical at first, even when the meanings of ‘decision-making’ and ‘environment’ are settled, it remains to be decided what the formula ‘environmental decision-making’ refers to. In fact, given a set of legally significant acts covered by the norm providing participatory rights, as well as a set of legally relevant images of nature, the width of the category of ‘environmental decision’ still has hazy boundaries. For instance, even if one would not probably have any hesitation in considering a decision on the placement of a dump as environmental in nature, doubts may be raised on how a primarily commercial act having a deep impact on the environment is to be labeled.29 Additional factors may come, or do come (the notion of interest is simply implicit in the concept of interested or affected public), into play. 4. Other Procedural Limits Of course, any number of conditions may be envisaged to modulate the scope of participation. Beneficiaries may be included or excluded on the basis of many fac26 See Ebbesson (supporting an extensive notion of decision-making also covering some private acts). See also, in the same vein, Ebbesson/Gaugitsch/Miklau/Jendros´ka/Stec/Marshall, p. 46. 27 For a philosophical journey, see Soper. 28 See, e. g., the Italian Council of State judgment in Landesverband für Heimatpflege in Südtirol v. Provincia di Bolzano and Comune di Monguelfo, Sez. IV, no. 5365, 2 October 2002 (interpreting the notion of ‘environmental interest’ to include the historical and artistic value of buildings). 29 To make just one example, one could think to how (international) trade law impacts on water- and virtual water-transfer policies (see Brown Weiss, p. 243 et seq.).

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tors, which can descend from the provision granting participatory rights itself or, alternatively, depend on the complex architecture of rules created by the interaction of different laws or even different legal systems. For example, the AC expressly allows interested NGOs to take part in the environmental decision-making process, provided that reasonable conditions set by national laws are satisfied:30 otherwise, their interest is deemed to be insufficient. As to the interplay between legal systems, on the other hand, one should consider that the AC has been ratified also by the European Union, whose acts are subject to the treaty provisions as well. However, the consolidated case-law of the European Court of Justice (ECJ) on the notion of direct concern – the sole basis on which a natural or legal person can ground a claim of annulment against an EU act – has identified very strict criteria (known as the Plaumann test) that could easily conflict with the more liberal provisions of the AC on access to courts.31 In addition, and before undergoing the test – generally speaking, before verifying whether EU law recognises an individual interest in one of its norms – it has to first be seen whether the act has direct effect.32 Should the answer be in the negative, the act would be invisible to potential, interested claimants.33 In concluding, as a general consideration, it is worth noting that any element discussed here (‘decisionmaking’, ‘environment’, ‘interest’) is susceptible to be impinged upon by limitations and conditions, such as those described.34 30 Art. 2 (5) AC (on the idea that the discretion of States parties is not to be understood as unlimited, see Ebbesson/Gaugitsch/Miklau/Jendros´ka/Stec/Marshall, p. 58). On legal standing of NGOs in environmental cases see, in general, Fasoli, and the contribution of the same author in this volume. 31 See Sisler/de Götzen, p. 202. 32 If a national implementation measure exists (in fact, it must be recalled that direct effects do not depend on the actual transposition of EU rules, and that, in any case, an unimplemented directive has interpretive value and – as established since ECJ, Judgement of 13 November 1990, Case C-106/89, Marleasing SA v. La Comercial Internacional de Alimentacion SA, ECR [1990] I-4135 – domestic courts must interpret national laws according to it), it cannot be excluded that the publics concerned by, respectively, that measure and the EU act do not overlap. 33 Of course, the possibility for the act to have real consequences notwithstanding its “invisibility” depends on the legal conditions on which a direct effect is said to exist (put simply, in EU law the act must be self-executing). An interesting case relating to a (marine) environmental treaty of which the European Union is a party, and to the notion of direct effect, is the ECJ, Judgment of 15 July 2004, Case C-213/03, Syndicat professionnel coordination des pêcheurs de l’étang de Berre et de la région v. Électricité de France (EDF), ECR [2004] I7357, paras. 39 et seq. 34 For instance, the notion of environment adopted by a judge could be made dependent on the partition of competences between State and sub-national entities specific to her legal order (see the Administrative Regional Tribunal (TAR) judgment in Associazione nazionale Legambiente Onlus and Istituto nazionale di urbanistica v. Comune di Siracusa, TAR Catania, Sez. I, no. 1979, 3 December 2003; this case-law has been since overruled: see The German Criteria for Access to Justice under the Scrutiny of the Aarhus Convention Compliance Committee and of the Court of Justice of the European Union: is there Room for Similar Proceedings against Italy? (Elena Fasoli), in this volume, p. 185).

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5. The Notion of Interest The category of subjects entitled to participatory rights which are attributed on the basis of an interest, according to concepts such as ‘interested public’ or ‘affected parties’ for instance, may be more or less crowded depending on the meaning which has to be given to the conditions of being interested in, or affected by something. This question has no easy answer. This should be evident from the mere consideration of an example taken from the field of air pollution: since air is an indivisible good which covers the whole planet, the emission of polluting gases may have a wide spectrum of effects which increase in intensity moving closer to the place of discharge. Under similar circumstances, it is difficult to set a minimum-effect threshold to keep separate the affected from the non-affected. In any case, any such distinction would be arbitrary, and rooted in considerations of legal policy no less than in scientific and factual ones.

V. Interests, Participation and International Law International law, too, speaks the language of interests with regard to States. However, given that they are the main subjects of international law, whenever the notion of interest is legally relevant for participation, then discrimination exists between interested and non-interested States; on the contrary, when no allusion to interest is made, it is possible that participation is unrestricted.35 For example, as far as law enforcement is concerned, usually a State can only raise a claim of non-compliance if it is damaged by the violation (damage being a form of legal interest). Occasionally, the invocation of the international responsibility of a State will be possible even in the absence of an injury (the AC itself could also serve as an example here36). The same is true, in reverse, with respect to law-making: while a majority of open treaties does not require the manifestation of an interest for a State to become a party, some other agreements can be accessed only by Countries showing a sufficient interest.37 Thus, at the international level, the discourse on interests may also be used to limit participation. In any case, in the last years, international lawyers assisted to a resurgence of publicness. Many concepts have been used to address the need to solve global problems (like the environmental ones) collectively: common areas, common heritages of 35 This is not always the case, obviously. In many cases, participation is forbidden despite the existence of a (material) interest. In environmental law, for instance, reference can be made to those fisheries agreements which are created by – and to the advantage of – a small number of beneficiaries, and forcibly enforced to the detriment of other, possibly equally interested, States: see Louka, p. 81 – 83. This is a way to avoid over-exploitation, and thus these agreements serve an environmental purpose. 36 See Koester, p. 187 – 188. 37 See Bodansky, p. 173 – 175 and, in general, Lukashuk. It must be noted that many international environmental instruments are open treaties.

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mankind and common concerns,38 common interests,39 public interests,40 general interests,41 communities of interests42 and public/common goods.43 It is outside the scope of this article to address these ideas in order to find if and to what extent they can be used to promote participation of States and non-state actors alike in environmental decision-making.44 Thus, it is here merely acknowledged that they have a great potential in furthering individual participatory rights. In fact, those concepts may be used to impose upon States an obligation to cooperate when dealing with transboundary or common resources45 – a duty that could easily be deemed to concern decision-making processes and so entail a corollary obligation to involve all the interest bearers. The same applies to the duty to conduct a transnational environmental impact assessment.46 Of course, since such secondary duty cannot be said to be embedded (yet) in the norms requiring cooperation and consultation among States47, this would require that they be bound by international rules similar to those enshrined in the AC. Despite, however, the fact that the United Nations Economic Commission for Europe (UNECE), the institutional setting where the Convention was negotiated, in 2005 adopted a report recommending the application of the principles of the AC also in international fora (the so-called Almaty Report),48 an uphill path is to be expected in the recognition of such an obligation. 38

There is plenty of literature on the subject. Amongst the most recent writings: Brunnée; Egede (p. 55 et seq.) and Mickelson. Moreover, since the environment may also encompass culture and art (see Section IV.), see Nafziger/Scovazzi. 39 See Benedek/De Feyter/Ketteman/Voigt. 40 According to Kulick, they are norms of international customary law (p. 232, specifically on environment). As a mere curiosity, I note that the author defines “public interest consideration” the reference made by an investment tribunal to the opposition of the population to how a waste service was run (p. 250). 41 See Gaja (especially chapter XIII and XIV). 42 See McCaffrey, p. 17 et seq. 43 See Brousseau/Dedeurwaerdere/Siebenhüner; Lenzerini/Vrdoljak; specifically on participation: Kaul. 44 A realistic view, though, should be rather sceptical (see, on the Antarctic regime, Francioni, Norme convenzionali, p. 196 – 201, stating that, provided that other requirements are met, lack of participation can be overlooked). Few are the possibilities of actio popularis (one being admissible under art. 218 UN Convention on the Law of the Sea: see Brunnée, p. 558 and Tams, p. 398). 45 See, as to the community of interests, Fisher, p. 116 – 117. 46 See Troell/Bruch/Cassar/Shang (a vast survey of TEIA processes also involving supranational institutions and transnational bodies can be found on p. 57 et seq.). It is clear that the dimension of the group of participatory-right holders can vary, depending on the kind of assessment conducted: an environmental impact assessment, a strategic environmental assessment or a social impact assessment. 47 See the judgment of the International Court of Justice (ICJ) of 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010, p. 14, para. 216. 48 UN Economic Commission for Europe: Report of the Second Meeting of the Parties, Addendum (Decision II/4 Promoting the Application of the Principles of the Aarhus Con-

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Ultimately, international law seems to have chosen another route. Since a crystallisation into customary law of the interest-based attribution of participatory rights – which would lead to the involvement of non-state actors whenever their interests were at stake – is inconceivable in the short run, and since human rights can be, under the AC, legal interests granting a right to participation, international law is slowly moving towards the incorporation of that right into human rights themselves (the right to water,49 the right to food,50 the right to health51 and other environmental rights52), so that individuals and their representatives are entitled to take part in decision-making procedures even in the absence of provisions like those of the AC. This, too, is an uphill path, perhaps just not as sloping as the other.

VI. Conclusions The purpose of this article was to sketch a theory on environmental interests, participatory rights, and their possible interplay, with the addition of some insights from the realm of international law. The absence of any personal stance on the desirability of more inclusive participation processes is to be read as deliberate. Whether more participation is opportune or feasible, is a matter that does not pertain to law.53 This is not to say, however, that law has no role to play at all. Being both a social science and a social factor, law is a carrier of culture and symbols: it modifies them and is modified by them. As a consequence, law may exert an influence over culture and culture over law. In the framework of our discussion, this means that reconceptualising the environment and how human actions affect it may lead to a reconsideration of the subjects entitled to participatory rights,54 and that the bestowal of such vention in International Forums), ECE/MP.PP/2005/2/Add.5. Even at a cursory look, though, the language of the report appears weakened compared to the wording of the Convention. 49 UN Committee on Economic, Social and Cultural Rights: General Comment 15, Right to water, UN Doc. E/C.12/2002/11, paras. 24, 37 et seq. and 48. 50 UN Committee on Economic, Social and Cultural Rights: General Comment 12, Right to adequate food, UN Doc. E/C.12/1999/5, para. 23. 51 UN Committee on Economic, Social and Cultural Rights: General Comment 14, Right to the highest attainable standard of health, UN Doc. E/C.12/2000/4, paras. 11, 17, 34, 43 and 54. 52 E.g., European Court of Human Rights (ECtHR) Judgement of 2 November 2006, Giacomelli v. Italy, Application no. 59909/00, para. 79 (“The Court considers that in a case […] which involves government decisions affecting environmental issues, […] it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual”). See also Francioni, La dimension environnementale, p. 958. 53 A brief but rich survey of non-legal studies on the pros and purposes of participation can be found in O’Faircheallaigh. 54 Defining nature as a common pool resource, for instance, “helps identify the relevant actors that appropriate from nature and how their behaviour affects other actors. It defines the actors based on the resource system, as opposed to geographical or political boundaries, thereby providing more insight into who the relevant parties are”: Rosenbloom, p. 61.

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rights to individuals previously ignored by law can raise their awareness of being influential actors, capable of impacting on the environment and, thus, responsible for it.55 Legitimacy of decisions can be attained only in this way: by reflecting on the idea of legitimacy itself.56 References Barnes, Jessica: Who is a Water User? The Politics of Gender in Egypt’s Water User Associations, in: Harris, Leila/Goldin, Jacqueline/Sneddon, Christopher (eds.): Contemporary Water Governance in the Global South: Scarcity, Marketization and Participation, 2013, p. 185 et seq. Benedek, Wolfgang/De Feyter, Koen/Ketteman, Matthias C./Voigt, Christina (eds.): The Common Interest in International Law, 2014. Bodansky, Daniel: The Art and Craft of International Environmental Law, 2010. Brousseau, Eric/Dedeurwaerdere, Tom/Siebenhüner, Bernd (eds.): Reflective Governance for Global Public Goods, 2012. Brown Weiss, Edith: International Law for a Water-Scarce World, 2013. Brunnée, Jutta: Common Areas, Common Heritage, and Common Concern, in: Bodansky, Daniel/Brunnée, Jutta/Hey, Ellen (eds.): The Oxford Handbook of International Environmental Law, 2007, p. 550 et seq. Charnovitz, Steve: Opening the WTO to Nongovernmental Interests, in: Fordham International Law Journal, vol. 24, no. 1, 2000, p. 173 et seq. Delli Priscoli, Jerome: What is Public Participation in Water Resources Management and why is it Important?, in: Water International, vol. 29, no. 2, 2004, p. 1 et seq. Drumbl, Mark A.: Actors and Law-making in International Environmental Law, in: Fitzmaurice, Malgosia/Ong, David M./Merkouris, Panos (eds.): Research Handbook of International Environmental Law, 2010, p. 3 et seq. Ebbesson, Jonas: Public Participation and Privatisation in Environmental Matters: An Assessment of the Aarhus Convention, in: Erasmus Law Review, vol. 4, no. 2, 2011, p. 71 et seq. Ebbesson, Jonas/Gaugitsch, Helmut/Miklau, Marianne/Jendros´ka, Jerzy/Stec, Stephen/Marshall, Fiona: The Aarhus Convention. An Implementation Guide, 2nd ed. 2014. Egede, Edwin: Africa and the Deep Seabed Regime: Politics and International Law of the Common Heritage of Mankind, 2011. Eilstrup-Sangiovanni, Mette/Pelphs-Bondaroff, Teale N.: From Advocacy to Confrontation: Direct Enforcement by Environmental NGOs, in: International Studies Quarterly, vol. 58, no. 2, 2014, p. 348 et seq. 55

See Delli Priscoli (stating, at p. 4, that the environmental community has “vital interests” in participatory processes, which “can and do profoundly affect our civic culture” to such an extent that it is possible to turn “customers” and “clients” into “citizens”). 56 On legality and legitimacy, see Elliott.

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Elliott, Lorraine: Legality and Legitimacy: The Environmental Challenge, in: Falk, Richard/ Juergensmeyer, Mark/Popovski, Vesselin (eds.): Legality and Legitimacy in Global Affairs, 2012, p. 365 et seq. English, Rosalind: What is “Public Authority” for the Purposes of Environmental Information? Fish Legal v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water, in: The Journal of Water Law, vol. 23, no. 2, 2013, p. 83 et seq. Fasoli, Elena: Legal Standing of NGOs in Environmental Disputes in Europe, in: Boschiero, Nerina/Scovazzi, Tullio/Pitea, Cesare/Ragni, Chiara (eds.): International Courts and the Development of International Law, Essays in Honour of Tullio Treves, 2013, p. 337 et seq. Fisher, Douglas: The Law and Governance Of Water Resources. The Challenge of Sustainability, 2009. Francioni, Francesco: Norme convenzionali e ‘principi’ sullo sfruttamento di spazi comuni: il caso delle risorse minerarie dell’Antartide, in: Il diritto internazionale al tempo della sua codificazione. Studi in onore di Roberto Ago, 1987, p. 185 et seq. – La dimension environnementale des droit de l’homme entre individualisme et intérêt collectif, in: Alland, Denis/Chetail, Vincent/de Frouville, Olivier/Viñuales, Jorge E. (eds.): Unité et diversité du droit international. Écrits en l’honneur du professeur Pierre-Marie Dupuy, 2014, p. 949 et seq. Gaja, Giorgio: The Protection of General Interests in the International Community, 2014. Kaul, Inge: Global Public Goods: What Role for Civil Society?, in: Nonprofit and Voluntary Sector Quarterly, vol. 30, no. 3, 2001, p. 588 et seq. Koester, Veit: The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), in: Ulfstein, Geir (ed.): Making Treaties Work, 2007, p. 179 et seq. Koester, Veit/Young, Tomme: Compliance with Environmental Conventions: The Role of Public Involvement, in: Environmental Policy and Law, vol. 37, no. 5, 2007, p. 399 et seq. Kohler-Koch, Beate: Civil Society and Democracy in the EU: High Expectations Under Empirical Scrutiny, in: Kohler-Koch, Beate/Quittkat, Christine (eds.): De-Mystification of Participatory Democracy. EU-Governance and Civil Society, 2013, p. 1 et seq. Kulick, Andreas: Global Public Interest in International Investment Law, 2014. Lenzerini, Federico/Vrdoljak, Ana Filipa (eds.): International Law for Common Goods. Normative Perspectives on Human Rights, Culture and Nature, 2014. Louka, Elli: International Environmental Law. Fairness, Effectiveness, and World Order, 2006. Lukashuk, Igor I.: Parties to Treaties: The Right to Participation, 1972. McCaffrey, Stephen: The Law of International Watercourses, 2nd ed. 2007. Mickelson, Karin: The Maps of International Law: Perceptions of Nature in the Classification of Territory, in: Leiden Journal of International Law, vol. 27, no. 3, 2014, p. 621 et seq. Nafziger, James/Scovazzi, Tullio: The Cultural Heritage of Mankind, 2008. Nurse, Angus: Privatising the Green Police: The Role of NGOs in Wildlife Law Enforcement, in: Crime, Law and Social Change, vol. 59, no. 3, 2013, p. 305 et seq.

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O’Faircheallaigh, Ciaran: Public Participation and Environmental Impact Assessment: Purposes, Implications, and Lessons for Public Policy Making, in: Environmental Impact Assessment Review, vol. 30, no. 1, 2010, p. 19 et seq. Pedersen, Ole W.: An International Environmental Court and International Legalism, in: Journal of Environmental Law, vol. 24, no. 3, 2012, p. 547 et seq. Peters, Anne: Membership in the Global Constitutional Community, in: Klabbers, Jan/Peters, Anne/Ulfstein, Geir (eds.): The Constitutionalization of International Law, 2009, p. 153 et seq. Peters, Birgit: Towards the Europeanization of Participation? Reflecting on the Functions and Beneficiaries of Participatory Rights in EU Environmental Law, in: Fraenkel-Haeberle, Cristina/Kropp, Sabine/Palermo, Francesco/Sommermann, Karl-Peter (eds.): Federalism, Alternative Forms of Democracy and Better Governance, 2015 (forthcoming). Rosenbloom, Jonathan: Defining Nature as a Common Pool Resource, in: Hirokawa, Keith H. (ed.): Environmental Law and Contrasting Ideas of Nature. A Constructivist Approach, 2014, p. 47 et seq. Sisler, Chiara/de Götzen, Eva: Access to Justice in Environmental Matters: What is New in the Implementation of the Aarhus Convention in the European Union?, in: Sancin, Vasilka/Kovicˇ Dine, Masa (eds.): International Environmental Law: Contemporary Concerns and Challenges in 2014, 2014, p. 201 et seq. Soper, Kate: What is Nature? Culture, Politics and the Non-Human, 1995. Tams, Christian J.: Individual States as Guardians of Community Interests, in: Fastenrath, Ulrich/Geiger, Rudolf/Khan, Daniel-Erasmus/Paulus, Andreas/von Schorlemer, Sabine/Vedder, Christoph (eds.): From Bilateralism to Community Interest. Essays in Honour of Bruno Simma, 2011, p. 379 et seq. Troell, Jessica/Bruch, Carl/Cassar, Angela/Schang, Scott: Transboundary Environmental Impact Assessment as a Tool for Promoting Public Participation in International Watercourse Management, in: Libor, Jansky/Jutto, Juha I. (eds.): Enhancing Participation and Governance in Water Resources Management: Conventional Approaches and Information Technology, 2005, p. 53 et seq. Zengerling, Cathrin: Greening International Jurisprudence. Environmental NGOs before International Courts, Tribunals and Compliance Committees, 2013.

Public Interest to Environmental Protection and Indigenous Peoples’ Rights: Procedural Rights to Participation and Substantive Guarantees By Federica Cittadino Abstract La partecipazione in materia ambientale è stata usata dagli organi internazionali di monitoraggio dei diritti umani come strumento a difesa dei diritti dei popoli indigeni. Analizzando la giurisprudenza internazionale in materia di diritti umani, il presente contributo ha individuato quattro forme di partecipazione assicurata ai popoli indigeni: partecipazione “politica”, “formale”, “effettiva” e consenso. Forme di partecipazione politica sono rinvenibili nella giurisprudenza della Corte europea, in seno alla quale la possibilità di prendere parte a libere elezioni è una forma sufficiente di consultazione. La partecipazione formale è assicurata nei report adottati nell’ambito dell’OIL: il Comitato infatti si limita spesso a verificare l’esistenza nella legislazione statale di obblighi di consultazione. La giurisprudenza interamericana individua forme culturalmente appropriate di partecipazione per assicurare l’effettività della stessa nei confronti dei popoli indigeni. Infine, il requisito del consenso, come strumento per assicurare l’esistenza stessa dei popoli indigeni, emerge nelle raccomandazioni del Comitato contro la discriminazione razziale e viene ripreso nella giurisprudenza interamericana e africana. Dall’analisi condotta risultano evidenti alcune peculiarità sulla natura e sul ruolo della partecipazione ambientale quando vengano in rilievo i diritti dei popoli indigeni. In primo luogo, le varie nuances della tutela partecipatoria sono strettamente collegate al diverso grado di protezione garantito ai diritti dei popoli indigeni all’interno dei sistemi convenzionali analizzati. La linea di demarcazione sembra essere rappresentata dalla contrapposizione fra partecipazione come diritto politico e partecipazione come diritto alla consultazione ogni qual volta un progetto che abbia conseguenze ambientali possa interferire con il godimento dei diritti dei popoli indigeni. In tal senso, il diritto alla partecipazione emerge come meccanismo procedurale che ha però anche effetti sostanziali sulla tutela dei diritti collettivi dei popoli indigeni, in quanto funge da baluardo a difesa del diritto alla terra. In tal senso, la partecipazione in materia ambientale può essere vista anche come uno strumento a tutela di interessi diffusi e non meramente di diritti individuali.

I. Introduction Participation in environmental matters has rapidly gained currency in international legal discourse on sustainable development. Principle 10 of the Rio Decla-

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ration1 has prompted a process that culminated in 1998 with the adoption of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.2 This treaty, promoted by the United Nations Economic Commission for Europe (UNECE) and thus having a regional character, has translated soft law standards as to the involvement of the public in environmental decision-making into binding obligations for the forty-seven State parties.3 In the Aarhus Convention (AC), participation is conceived both as a means to realise the right ‘of every person’ to enjoy a satisfactory level of environmental protection and as a prerequisite for States to be able to fulfil their duty to protect the environment.4 Not only are rights granted to individuals and to the public, but the AC also spells out corresponding obligations for States to establish an adequate legal framework in order to achieve the AC’s objectives. An important element in this delicate equilibrium between individual rights and State obligations is further represented by the citizens’ duty to contribute to the preservation of the environment. The rationales behind public participation, however, go beyond this element to uncover a complex and varied set of justifications. These range from “an expansive notion of democracy”, where the individuals play a role in the promotion of collective interests, to the necessity to include perspectives that may be unknown to policy-makers in decision-making processes.5 In the view of Ebbesson, participation in environmental matters can be framed – broadly speaking – as stemming from the right of political participation included in human rights instruments.6 Finally, participation may be justified in terms of the impacts that en1 See UN Conference on Environment and Development, Rio de Janeiro, 3 – 14 June 1992. See also Agenda 21, also adopted in Rio, Ch. 23, which refers to public participation Agenda as a requirement “for the achievement of sustainable development”. 2 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998, in force 30 October 2001) 2161 UNTS 447. The three pillar-structure of the Convention articulates the obligations of States concerning the involvement of the public in environmental decision-making into three blocks: access to information (art. 4 – 5 AC), public participation (art. 6 – 8 AC), and access to justice (art. 9 AC). Concerning the three components of public participation, see e. g. Saladin. 3 The list of the State parties is available at: https://treaties.un.org/Pages/ViewDetails.as px?src=TREATY&mtdsg_no=XXVII-13&chapter=27&lang=en. 4 The wording used in art. 1 AC: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being …” [emphasis added]. Furthermore, para. 5 of the Preamble refers to the more general objective of contributing to the realization of sustainable development. 5 See Ebbesson, p. 686 – 688. See also Human Rights and the Environment, Final report prepared by Ksentini, Fatma Zohra, Special Rapporteur (6 July 1994) UN Doc. E/CN.4/Sub.2/ 1994/9, paras 67 – 73. 6 See Universal Declaration of Human Rights, UNGA 183th meeting, 10 December 1948, art. 21; International Covenant on Civil and Political Rights (New York, 16 December 1966, in force 23 March 1976), 999 UNTS 171, art. 25; European Convention for the Protection of Human Rights and Fundamental Freedoms (Strasbourg, 4 November 1950, in force 3 September 1953) 213 UNTS 222, art. 3 of Protocol I; American Declaration, art. 20; Ame-

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vironmental decision-making may have on the general public and on the individuals affected by a particular measure.7 In this sense, participation may be seen as a means to build trust and ensure the legitimacy of the decisions adopted, thus promoting effectiveness and implementation. Rationales for public participation are reflected in a number of multilateral environmental treaties.8 The perspective I would like to present, however, is slightly different; it concerns the way in which human rights bodies have operationalized the principle of public participation in environmental matters. Surprisingly, participation requirements have not usually been derived from political rights to participation included in human rights instruments. Rather, they have been the product of an interpretative process that can be framed in the so-called human rights approach to environmental protection. Human rights bodies have proceeded to gradually incorporate environmental considerations into well-established human rights by including, inter alia, procedural guarantees of public participation in environmental decisions. In this sense, public participation may be further justified by the role that human rights implementation plays in the furthering of environmental objectives, and should be therefore distinguished from the more general right to political participation. The incorporation of participation requirements into substantive rights is particularly significant in the case of indigenous peoples. In this respect, participation goes hand in hand with indigenous rights to land, natural resources, and cultural integrity. These rights have an important environmental component, in that their full enjoyment cannot be ensured if environmental destruction is not prevented. Traditional practices and livelihood are in fact often closely linked to the need to preserve the environment. Further, the role of indigenous peoples in the sustainable management of natural resources has been recognised in a number of instruments and is part of the indigenous political agenda.9 In line with the need to preserve these rights, particirican Convention, art. 23; African Charter on Human and Peoples’ Rights (Banjul, 27 June 1981, in force 21 October 1986) 21 ILM 58, art. 13. See Anton/Shelton, p. 382 – 383. 7 See Saladin, p. 57. 8 Ebbesson, p. 690. See also Anton/Shelton, p. 381 – 382. 9 See Rio Declaration, supra note 1, Principle 22; Convention on Biological Diversity (Rio de Janeiro, 5 June 1992, in force 29 December 1993) 1760 UNTS 79, preamble para. 12, art. 8 (j) and 10; Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity (Nagoya, 29 October 2010, in force 12 October 2014), in CBD Decision 10/1, CBD Decision 10/1, “Access to genetic resources and the fair and equitable sharing of benefits arising from their utilization” (20 January 2011) UN Doc UNEP/CBD/COP/10/27, preamble para. 22; United Nations Declaration on the Rights of Indigenous Peoples (13 September 2007) UN Doc A/RES/61/295, hereinafter UNDRIP, preamble para. 11. See also International Labour Organisation Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (Geneva, 27 June 1989, in force 5 September 1991) ILO/C169, hereinafter ILO Convention 169. Art. 7 of the ILO Convention 169 and art. 29 of UNDRIP further establish States’ obligations to protect the environment in indigenous territories, thus implicitly acknowledging the impact that environmental miscarrying can produce on indigenous rights. See Deroche, p. 529. The link between indigenous rights and the protection of

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pation implies the rights of indigenous peoples to be consulted every time a decision over traditional lands or resources is adopted.10 The declinations of this right are, however, manifold and will be explored in the following sections. It is worth highlighting at this stage that the participatory rights of indigenous peoples may reveal another rationale for public participation, pointing at the role that the invocation of collective rights may play for the preservation of the environment. This contribution aims to trace back the framing of the right to participation of indigenous peoples into the decisions of human rights bodies. Its objective is to identify the main trends in the recognition of indigenous peoples’ participation in environmental matters by human rights bodies. In line with the purposes of the present volume, this contribution concentrates on public participation, and it only refers to information and access to justice when relevant for clarifying aspects of participatory rights. It argues that the right to participation has both procedural and substantive implications for indigenous peoples. Indeed, the right to be consulted is not the only manifestation of the right of indigenous peoples to participate in decision-making processes. The qualification of effectiveness that human rights bodies have elaborated on, as well as the consent requirement evoked in some specific circumstances, may give indigenous peoples substantive powers in terms of land and resource management, as well as constituting an instrument for reviewing the merits of the policies promoted by the State or private actors. It is further contended that collective rights can give the public interest component of participation a new meaning. The general interest of larger national societies is in fact to be balanced against the consideration of the collective interests of national groups.

II. Indigenous Participation in the Decisions of Human Rights Bodies: Four Strands of Rights Indigenous peoples and the protection of the environment are linked in the decisions of human rights bodies in at least two main ways.11 First, indigenous groups have been challenging development projects taking place in their territories that had negative environmental consequences in terms of unsustainable resource use patterns or of the pollution deriving from development activities. Second, in some cases, indigenous rights have been further restricted by environmental projects, such as the creation of nature reserves, which combined their negative effects with development plans. In this context, participation into decision-making has been invoked by indigenous applicants to mitigate the effects of States’ unilateral decisions on their rights and their natural environment. In some other cases, the lack of participation has been the environment is further recognised in the decisions of human rights bodies. See Fodella, p. 350 et seq. 10 ILO Convention 169, art. 6. 11 For a comprehensive analysis of human rights’ bodies decisions on indigenous peoples and the environment, see Fodella.

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used by human rights bodies to ascertain the violation of substantive rights. In this sense, the right to participation becomes both a procedural requirement in the legal reasoning of courts and quasi-judicial bodies and an important procedural step in the concrete realisation of rights. In an attempt to clarify the different nuances of the right to participation enjoyed by indigenous peoples, the decisions of human rights bodies can be classified along a spectrum that goes from the more general and less demanding forms of participation to procedural requirements that give indigenous peoples the ultimate power to decide on certain matters. Along this ideal spectrum, four main types of participatory models that have been concretely applied by human rights bodies can be identified. These are political rights, formal standards of participation, the paradigm of effective participation, and the prior informed consent of communities. 1. ‘Light Participation’: Participation Through Individual Political Rights The first and ‘lighter’ conceptualization of participatory rights is one in which general political rights to participate as voters to influence public decision-making are deemed sufficient to satisfy the conditions for public participation in environmental matters. In its decision concerning the case G. and E. v. Norway of 1984,12 the European Commission of Human Rights has spelled out the criteria for this model of participation. The construction of a hydroelectric plant in the Alta Valley, a region inhabited by Lapps, had caused parts of the communities’ lands to be flooded. The applicants, two Norwegian citizens of Lapp descent, claimed before the European Commission of Human Rights that their traditional activities were jeopardised by this state of affairs.13 The Commission, however, finally decided against the admissibility of the case before the European Court of Human Rights (ECtHR), reaching the conclusion that no violation of art. 8 of the European Convention on Human Rights (ECHR) had occurred. This article protects private and family life and has extensively been used by the Court in cases involving environmental degradation to determine infringements by the State on the individual claimants’ rights.14 In the case at hand, although the impact on traditional activities had been recognised 12

ECtHR Judgement of 29 August 1990, G. and E. v. Norway, Application no. 11701/85. The European Commission on Human Rights operated until 1998. Its role was to decide on the admissibility of any complaints before they could reach the Court. 14 See ECtHR Judgment of 9 December 1994, López Ostra v. Spain, Application no. 16798/90; ECtHR Judgment of 19 February 1998, Guerra and Others v. Italy, Application no. 14967/89; ECtHR Judgment of 10 November 2004, Tas¸kın and Others v. Turkey, Application no. 46117/99; ECtHR Judgment of 9 June 2005, Fadeyeva v. Russia, Application no. 55723/00; ECtHR Judgment of 27 November 2007, Hamer v. Belgium, Application no. 21861/03; ECtHR Judgment of 27 January 2009, Ta˘tar v. Roumania, Application no. 67021/01. On the human rights approach to environmental protection before the ECtHR, see: Sands; Council of Europe. For a more critical approach, see Kiousopoulou. 13

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by the Commission, this was deemed too limited to engender a violation of the ECHR. Furthermore, concerning participation, the Commission referred to the applicants’ rights to vote and therefore to be represented in the Norwegian political system as a sufficient requirement for ensuring an adequate involvement in decision-making processes.15 In comparison with the G. and E. judgment, the line of reasoning adopted by the ECtHR in Johtti Sapmelaccat Ry and Others v. Finland is more sophisticated.16 Here the Court referred to the fact that the “Sàmi Parliament participates in the decision-making concerning fishing and has the possibility to affect the regulation of fishing”.17 However, the argument used by the Court may be interpreted as boiling down to the same notion of political participation.18 2. The Assessment of Participation as a Formal Requirement In the second strand of decisions, participatory rights are valued as a fundamental step in the fulfilment of other rights. However, the mechanism to assess whether the consultation of interested groups has occurred is merely formal, in that the sheer presence of a legal framework on consultation is considered to fulfil the procedural requirements of participation. An example of this formal approach is the position adopted by the International Labour Organisation (ILO) supervisory mechanism in relation to the ILO Convention 169 on indigenous and tribal peoples.19 In this respect, the ILO Committee has examined a number of applications, pursuant to art. 24 of the ILO Constitution, brought by workers’ and employers’ associations, both representing indigenous

15 Desgagné, p. 287: “in G. and E. v. Norway, the applicants alleged that the Lapps were a minority suffering from discrimination and that their rights were not adequately protected by Norwegian law. The Commission, after noting that no specific minority rights were guaranteed under the Convention, added: ‘The applicants are Norwegian citizens, living in Norway, and under Norwegian jurisdiction. They have, as other Norwegians, the right to vote and to stand for election to the Norwegian Parliament. They are thus democratically represented in Parliament, although the Lapps have no secured representation for themselves.’” In sharp contrast with this approach concerning minority and group rights, Shelton refers to the procedural rights to information granted by the ECtHR in cases like Guerra and Others v. Italy, supra note 14, and ECtHR Judgment of 30 November 2004, Öneryıldız v. Turkey, Application no. 48939/99. See Shelton, p. 8. 16 ECtHR Judgment of 18 January 2005, Johtti Sapmelaccat Ry and Others v. Finland, Application no. 42969/98. 17 Johtti Sapmelaccat Ry and Others v. Finland, supra note 16. 18 It is interesting to note that in ECtHR Judgement of 12 January 2006, Hingitaq 53 and Others v. Denmark, Application no. 18584/04, the ECtHR did not take up the argument from the Inuit complainants that their right to consultation has been breached. 19 ILO Convention 169, supra note 9.

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groups.20 Art. 6 of the ILO Convention 169 protects indigenous rights to participation by creating an obligation for State parties to consult with indigenous peoples when applying the provisions of the Convention. It also establishes some requirements for this consultation to take place in accordance with the Convention. This must be done in good faith, should be culturally appropriate and should be carried out with the aim “of achieving agreement or consent”. Although participation and consultation have been framed as the ‘cornerstone’ of the ILO Convention 169, the requirement of achieving consent has never been interpreted by the ILO Committee as implying an obligation to obtain consent before the initiation of any project.21 In this respect, the two reports on Colombia, adopted in 2001, are particularly significant. The first report concerned the construction of a hydroelectric dam with the consequent displacement of the peoples concerned, while the second was related to the construction of a highway and the concession of petroleum exploration licences. In both cases, the complainants claimed that the State had not proceeded to prior consultation, thus violating Convention 169. In both cases, the Committee concluded that, although the failure to consult with indigenous peoples was in breach of Convention 169, consent is to be considered merely as an objective of consultation and does not represent a requirement in itself. Moreover, the analysis of the Committee usually stops at the acknowledgment that a legal framework on public consultation has been adopted nationally, thus falling short of any consideration on the effectiveness of these mechanisms.22 20 ILO Constitution, original text contained in Part XIII Treaty of Versailles (signed 28 June 1919, then amended), art. 24, titled “Representations concerning the application of a Convention”, reads as follows: “In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit”. 21 Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), made under art. 24 ILO Constitution by the Confederacio´n Ecuatoriana de Organizaciones Sindicales Libres (CEOSL), 2001, para. 39. Although consent is not a requirement, prior consultation is needed. See also Reports on Colombia: Central Unitary Workers’ Union (CUT), Colombian Medical Trade Union Association, para. 59; Central Unitary Workers’ Union (CUT), para. 77. See also MacKay, p. 41 – 42. See also ILO Report on Argentina, Report of the Committee set up to examine the representation alleging non-observance by Argentina of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), made under art. 24 ILO Constitution by the Education Workers Union of Rio Negro (UNTER), local section affiliated to the Confederation of Education Workers of Argentina (CTERA), local section affiliated to the Confederation of Education Workers of Argentina (CTERA), 2008, para. 81. 22 See ILO Report on Mexico, Report of the Committee set up to examine the representation alleging non-observance by Mexico of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), made under art. 24 ILO Constitution by the Trade Union Delegation, D-III-57, section XI of the National Trade Union of Education Workers (SNTE), Radio Education, 1998, paras. 30 – 43. Indeed, this trend has partially been qualified by the recognition of the need to perform feasibility studies and impact assessments as a necessary step to ensure meaningful participation. See ILO Report on Bolivia, Report of the Committee set up to

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According to Rodríguez-Piñero, the focus of the ILO Committee on procedural rights can be explained by the unwillingness to deal with issues related to more substantive rights, such as the right to land.23 3. Indigenous Participation as a Requirement for Effective Participation A third tendency in the spectrum of international decisions on indigenous rights is recognisable in the jurisprudence of the Human Rights Committee, which is the supervisory body of the International Covenant on Civil and Political Rights, and of the Inter-American Court of Human Rights, which oversees the correct application of the American Convention on Human Rights. Both bodies have elaborated very progressive standards in terms of the recognition of indigenous rights to land and culture, thus contributing to the affirmation of legal criteria that have subsequently been referred to by other human rights bodies and national courts. Concerning indigenous participation in public decision-making affecting the environment, these bodies go beyond the mere acknowledgement of the existence of participatory mechanisms to look at the effectiveness of participatory processes. This is the case of the Human Rights Committee’s decision in Apirana Mahuika on the right of minorities to enjoy their culture, in which the requirement of effective participation is qualified by the substantive requirement that indigenous peoples “continue to benefit from their traditional economy”.24 Moreover, the contribution of the Inter-American Court and Commission in the cases Marie and Carrie Dann

examine the representation alleging non-observance by Bolivia of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), made under art. 24 ILO Constitution by the Bolivian Central of Workers (COB), 1999, para. 39. ILO Report on Peru, Report of the Committee set up to examine the representation alleging non-observance by Peru of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), made under art. 24 ILO Constitution by the General Confederation of Workers of Peru (CGTP), 2012, paras. 27, 28 and 34. A further evolution can be detected in ILO Report on Brazil, Report of the Committee set up to examine the representation alleging non-observance by Brazil of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), made under art. 24 ILO Constitution by the Union of Engineers of the Federal District (SENGE/DF)), 2009, where the Committee calls for a permanent mechanism to ensure meaningful participation, see para. 44. Maybe following on from the Saramaka decision of the same year, the Committee also makes reference to the requirement of benefit sharing. See para. 58. 23 Rodríguez-Piñero, p. 88. 24 Apirana Mahuika et al. v. New Zealand, Communication no. 547/1993, UN Doc. CCPR/ C/70/D/547/1993 (2000), para. 9.5. The case concerned the application of fishing restrictions to the Mahuika people in breach of the Treaty of Waitangi that gave these peoples “the undisturbed possession” of their lands and territories. On the requirement of effective participation, see also Human Rights Committee, General Comment No. 23, art. 27, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 (1994), p. 38, para. 7.

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v. US and Sarayaku v. Ecuador is particularly significant in this respect.25 Drawing from the Saramaka v. Suriname case, the Court requires States to carry out consultations “in accordance with […] customs and traditions”, thus operationalizing the requirement of cultural appropriateness.26 In the Dann case, this requirement translates into the need to ensure that the representatives of indigenous groups should have a clear mandate from the groups affected and should be adequately involved in the decision-making process.27 The Commission in the Dann case also insisted on the need to ensure informed participation. In the Sarayaku case, in responding to Ecuador’s arguments that political participation of indigenous peoples had been guaranteed by the State, the Court recalled the requirements elaborated in Saramaka,28 including the need to ensure meaningful consultation.29 Furthermore, the Court went so far as to affirm that the obligation to consult indigenous peoples at any time their rights may be affected is a general obligation of international law that has been consolidated beyond treaty provisions.30 The Court additionally emphasised the difference between consultation and participation, while concluding that both are mandatory requirements.31 It seems that while consultation is an ad-hoc process that may be activated in cases where indigenous rights are affected by particular decisions, participation requires well-established procedures that indigenous peoples should have access to. The Sarayaku decision also elaborated on participation requirements, by recalling that these have become obligatory for Ecuador since the entry into force of the ILO Convention 169. The Court, therefore, derived participatory rights from an 25

Inter-American Commission of Human Rights, Marie and Carrie Dann v. United States, Report no. 75/02, case no. 11.140, Judgment of 27 December 2002. Inter-American Court of Human Rights, Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, case no. 12.465, Judgment of 27 June 2012. 26 See Sarayaku case, supra note 25, para. 177. 27 See Dann case, supra note 25, para. 140. The interplay between individual members and the group must also be taken into account, see para. 165. 28 See Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, case no. 12.338, Judgement of 28 November 2007. For a detailed analysis of the Saramaka case, see Brunner, para. 134. For references to free, prior and informed consent, see Beyerlin/ Marauhn, p. 405. 29 See below in this section. 30 See Sarayaku case, supra note 25, para. 164: “the obligation to consult, in addition to being a conventional standard, is also a general principle of International Law”. 31 See Sarayaku case, supra note 25, para. 166: “The obligation to consult Indigenous and Tribal Communities and Peoples on any administrative or legal measure that may affect their rights, as recognised under domestic and international law, as well as the obligation to guarantee the rights of indigenous peoples to participate in decisions on matters that concern their interests, is directly related to the general obligation to guarantee the free and full exercise of the rights recognised in the Convention (art. 1 (1)). This implies the duty to adequately organize the entire governmental apparatus”. Other requirements are spelled out in paras. 167 et seq.: the involvement of indigenous peoples must occur in a timely manner, meaning from the very beginning of the decision-making process. Consultation must be conducted in good faith and with the aim of achieving an agreement. Consultation must be informed, which could also imply that an environmental impact assessment should be carried out beforehand.

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extensive interpretation of the American Convention in light of the ILO Convention 169. Finally, the Court connected the requirement of meaningful consultation to the need to ensure the respect for indigenous peoples’ cultural integrity.32 4. Consent of Indigenous Peoples as a Requirement of Effective Participation At the far end of the ‘participation spectrum’ it is possible to recognise a fourth tendency in which consent, rather than being interpreted as a mere objective of consultation, becomes a requirement of effective participation. This trend is transversal to the decisions of several human rights bodies. In its General Recommendation No. 23 of 1997 on indigenous peoples, the Committee on the Elimination of Racial Discrimination condemns the expropriation of traditional lands if obtained without free, prior and informed consent of indigenous peoples.33 This is the first, though implicit, international reference to consent as an essential component of indigenous participation; it establishes the duty for States to obtain the meaningful consent of indigenous peoples whenever indigenous rights are affected. The need to consult with indigenous peoples to obtain their consent before adopting decisions affecting their territories and natural resources may be interpreted here as an expression of participatory mechanisms. Indeed, this is the way consent has evolved in the decisions of other human rights bodies. In 2007, the Inter-American Court of Human Rights in its landmark decision Saramaka v. Suriname has developed a test to assess the legitimacy of the burdens placed on indigenous rights.34 In the reasoning of the Court, these rights are not absolute. Still, any limits placed upon them must be previously established by law, must pursue a legitimate aim in a democratic society, and must be necessary and proportional. The overall aim is to ensure that States’ actions do not encroach on the very survival of indigenous groups as distinct peoples. In this framework, the Court elaborated a set of procedural guarantees to ensure the involvement of indigenous peoples in decisionmaking. Decisions must be taken in consultation with indigenous groups, they must be based on impact assessment studies made available to the public, and must in certain cases ensure the equitable sharing of the benefits deriving from the activities encroaching on indigenous rights. Going beyond the articulation of procedural guarantees for ensuring an effective participation, the Court further specified the conditions under which consent is required. In accordance with the United Nations Declaration on the Rights of Indigenous Peoples, consent must be ensured “in the case of large

32

See Sarayaku case, supra note 25, paras. 212 et seq. Committee on the Elimination of Racial Discrimination, General Recommendation No. 23: Indigenous Peoples, UN Doc. A/52/18, 18 August 1997. On the right of indigenous peoples to free, prior and informed consent, see Barelli. 34 Saramaka case, supra note 28. For a detailed analysis of the Saramaka case, see Brunner. 33

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scale investment or development plans that would have a major impact within the [indigenous] territory”35. Consent, therefore, must be interpreted in a teleological sense as a prerequisite for ensuring the very survival of indigenous peoples.36 This often depends on the possibility for indigenous groups to have access to traditional lands and resources. In this sense, therefore, survival may be linked to a form of economic self-determination of peoples.37 The Human Rights Committee has endorsed this approach in Poma Poma v. Peru where it explicitly affirmed that for participation to be effective it “requires not mere consultation but the free, prior and informed consent of the members of the community”.38 Also, the African Commission on Human and Peoples Rights has incorporated the requirement of consent. In Endorois v. Kenya, consent is bound to “projects that would have a major impact within the Endorois territory”.39 Finally, in its General Comment No. 21, the Committee on Economic, Social and Cultural Rights stresses the link between participation and consent.40

35 See Saramaka case, supra note 28, para. 134. For references to free, prior and informed consent, see Beyerlin/Marauhn, p. 405. 36 It is interesting to note that this requirement has not been taken up in more recent decisions of the Inter-American Court. In Garifuna v. Honduras, the Court refers to “free, prior, and informed consultation” (para. 263), while in Sarayaku v. Ecuador it frames again consent as an objective of consultation (para. 177). Inter-American Commission of Human Rights, Garífuna Community of “Triunfo de la Cruz” and its members v. Honduras, Report no. 76/12, case 12.548, 7 November 2012. 37 According to Gilbert, Indigenous Peoples’ Land Rights, ch. 5, self-determination of indigenous peoples must not be interpreted as necessarily implying a right to secession. The conditions for secession are those spelled out by the Supreme Court of Canada in its decision on Québec. See Supreme Court of Canada, Judgement of 20 August 1998, Reference ReSecession of Quebec, case no. 25506. Self-determination, indeed, can be also interpreted in light of art. 1 (2) ICCPR/ICESCR as implying that every people has the power to decide on its development priorities. In this sense, self-determination implies rights for indigenous peoples to effectively control their lands and resources. This objective may be reached inter alia through the effective implementation of the right to free, prior and informed consent. See Gilbert, Indigenous Peoples’ Land Rights, ch. 5. 38 Human Rights Committee, Ángela Poma Poma v. Peru, Communication no. 1457/2006, UN Doc. CCPR/C/95/D/1457/2006 (2009), para. 7.6. 39 African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, Communication no. 276/2003, 25 November 2009, para. 291. For an analysis of the case, see Gilbert, Indigenous Peoples’ Human Rights. 40 General Comment No. 21. Right of everyone to take part in cultural life (art. 15, para. 1 (a) International Covenant on Economic, Social and Cultural Rights), UN Doc. E/ C.12/GC/21. See, in particular, para. 55.

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III. Conclusion 1. Indigenous Peoples and Participation This contribution has analysed the practice of human rights bodies in recognising a right to participation for indigenous peoples in environment-related cases. Four main trends on public participation have been identified, namely political rights, formal standards of participation, the paradigm of effective participation, and the prior informed consent of communities. These are the expression of the different advancements of indigenous rights in global and regional systems of protection. Participation is subsumed under general political rights in Europe. The rights of indigenous peoples are not explicitly recognised by the ECtHR, which is lagging behind when it comes to the protection of indigenous peoples and, more in general, of minorities.41 Although there would be room to expand political participation so as to include more precise standards for consultation in decision-making, other human rights bodies have elaborated different criteria to assess whether participation requirements are effectively implemented. These range from cultural appropriateness to the performance of impact studies and the granting of benefit sharing. These criteria are functional to the realization of substantive rights, such as the right to land and the right to cultural integrity. Free, prior and informed consent has also been referred to in more innovative decisions by the Inter-American Court, the African Commission on Human and Peoples’ Rights, and the Human Rights Committee, in order to respond to the policy objective of avoiding substantive encroachment on indigenous survival. From the above analysis, it is not possible to clearly distinguish between consultation and participation since both elements are often recognised as important in the decisions of human rights bodies.42 In contrast, there emerges a sharp distinction between general political participation requirements as realised through voting rights and consultation in decision-making processes as a procedural step to be implemented before adopting any decision with possible consequences on indigenous rights. Another relevant difference seems to be attached to the effects of consultation. In other words, the extent to which consultation should be binding depends on factual circumstances as well as the legal systems involved. Although the scope of consultation is flexible, there seems to be room for affirming that an international standard in the form of a general principle of international law on consultation has eventually emerged. In this sense, the Inter-American Court has argued that this standard can be derived both from national constitutions and international instruments such as the ILO Convention 169. Although the legal effects of this general principle are still unclear, the content of this principle can be further specified with reference to the United Nations Declaration on the Rights of Indigenous Peoples. This non-binding document, adopted in 2007 by the UN General Assembly, has contributed to crystallize the 41 42

For an analysis of the case law of the ECtHR on minority rights, see Tavani, p. 65 – 72. See supra note 32.

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international consensus on some of the rights of indigenous peoples, such as the right to land and cultural integrity.43 As for participation, the Declaration strongly affirms the right to free, prior and informed consent along with other participatory requirements that range from participation in decision-making to the definition of common grounds to adjudicate land tenure.44 More specifically on the role of human rights bodies, it is worth underlining three main points. First, participatory requirements in environmental decisions were not originally included in the provisions of the human rights instruments analysed in this contribution. Human rights monitoring bodies have therefore proceeded to extrapolate those requirements from other rights. To do so, and this is linked to the second point, human rights bodies have relied both on international instruments not originally in the purview of their monitoring powers and on national legal standards, thus showing a strong degree of contamination and cross-fertilisation. Third, this process has been accelerated by the consolidation of indigenous rights at the international level. Suffice it to think that the Saramaka decision has been adopted just a few months after the adoption of the UN Declaration on Indigenous Peoples.45 2. Lessons to be Drawn: the Conceptualisation of Participation From the cases examined in this contribution, it is possible to draw more general conclusions on the right to participation. The present volume has framed this debate in terms of two broad dichotomies: firstly, do environmental participatory rights serve individual or collective interests; and secondly, are they procedural or substantive in nature? Concerning the former question, a large distinction can be drawn from this analysis. While participation in the AC has often been conceptualised as a classical human right to be exercised by individuals or alternatively by groups of individuals sharing the same interests, in this paper, participation has clearly emerged as a collective interest. This is due to the very nature of indigenous rights. Standards for the participation of indigenous peoples are intimately linked to the need to preserve the existence of these groups in that they constitute a tool to protect land rights and cultural distinctiveness. The ultimate aim is to guarantee the survival of those 43 See Anaya/Wiessner. See Allen/Xanthaki, and in particular the contributions of Daes, p. 38 – 40, Voyiakis, p. 209 – 233 (for a critical view on the formation of customary norms after the adoption of the Declaration), and Quane, p. 259 – 287 (particularly on self-determination and participatory rights). 44 Free, prior and informed consent is included in art. 10 as a limit to relocation, in art. 19 as a requirement for adopting decisions that affect indigenous rights, in art. 28 as a requirement in the absence of which a judicial redress can be sought, and in art. 29 as a limit to the disposal of hazardous material in indigenous lands. Further, art. 32 refers to the “free and informed consent” of indigenous peoples “prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.” On the different conceptualizations of participation in the Declaration, see Quane, p. 272 – 287. 45 Beyerlin/Marauhn, p. 405.

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groups by ensuring the control of these peoples over land and resources. Since the decision of the Inter-American Court in Mayagna (Sumo) Awas Tingni v. Nicaragua, indigenous land rights are conceived as collective rights, a communal form of property.46 This element is further confirmed by the UN Declaration on indigenous peoples.47 As a consequence, if participation is conceived as a tool for ensuring the full realisation of land rights, it must share the collective nature of these rights. As recalled by human rights bodies, participation must be in line with indigenous culture and conceptions. This implies that participation should adhere to the conception underpinning the collective rights of indigenous peoples. Therefore, and more in general, this analysis may be seen as an argument in favour of the recognition of the role that collective rights may play in environmental protection. In a de jure condendo perspective, participation is to be interpreted as a requirement for realising group rights to the environment and to fulfilling group duties towards the environment. Regarding the latter question of whether participation shares more of procedural or substantive rights, it is worth recalling that participatory requirements are functional to the realisation of substantive rights, including those rights that purport to preserve the very existence of indigenous peoples. Further, if the requirement of free, prior and informed consent were to be fully realised, this would give indigenous peoples very significant powers over land and natural resources, which for some authors amount to the recognition of economic self-determination of those groups. Even in a more limited conception of participatory rights, where effectiveness is a more restrictive parameter, the performance of impact assessment studies and the granting of benefit sharing are an instrument to review the merits of the policies promoted by States or private actors.48 The categories of procedural versus substantive rights are therefore blurred. In conclusion, the participation of indigenous peoples in environmental decisionmaking is, therefore, specific to the rationales behind, and the nature of indigenous rights. Recognising this should draw renewed attention to the importance to define the scope and limits of the requirement of free, prior and informed consent within and beyond the purview of human rights law.

46 Inter-American Court of Human Rights, Judgment of 31 August 2001, Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Merits, Reparations and Costs, case no. 11,577. 47 The Preamble explicitly refers to the collective rights (preamble para. 23). This is also confirmed by the fact that all indigenous rights concerning land are granted to indigenous peoples as such, as opposed to indigenous individuals. See art. 10 (prohibition of forced removal), art. 25 (right to maintain and strengthen the spiritual ties with land), art. 26 (right to traditional lands, territories and resources), art. 27 (adjudication of land tenure), art. 28 (right to redress from land confiscation). 48 This corresponds to the third strand of the conceptualisation on public participation, as illustrated in section II.

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References Allen, Stephen/Xanthaki, Alexandra (eds.): Reflections on the UN Declaration on the Rights of Indigenous Peoples, Studies in International Law, 2011. Anaya, S. James/Wiessner, Siegfried: The UN Declaration on the Rights of Indigenous Peoples: Towards Re-empowerment, in: JURIST, 3 October 2007, available at: http://jurist.org/forum/ 2007/10/un-declaration-on-rights-of-indigenous.php. Anton, Donald K./Shelton, Dinah: Environmental Protection and Human Rights, 2011. Barelli, Mauro: Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges ahead, in: International Journal of Human Rights, vol. 16, 2012, p. 1 et seq. Beyerlin, Ulrich/Marauhn, Thilo: International Environmental Law, 2011. Brunner, Lisl: The Rise of Peoples’ Rights in the Americas: The Saramaka People Decision of the Inter-American Court of Human Rights, in: Chinese Journal of International Law, vol. 7, 2008, p. 699 et seq. Council of Europe: Manual on Human Rights and the Environment, 2012. Daes, Erica-Irene: “The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal”, in: Allen, Stephen/Xanthaki, Alexandra (eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples, 2011, p. 11 et seq. Deroche, Frédéric: Emergence d’un système de protection du rapport à la terre et aux ressources naturelles des peuples autochtones, in: Cournil, Christel/Colard-Fabregoule, Catherine (eds.): Changements environnementaux globaux et Droits de l’Homme, 2012, p. 511 et seq. Desgagné, Richard: Integrating Environmental Values into the European Convention on Human Rights, in: American Journal of International Law, vol. 89, 1995, p. 263 et seq. Ebbesson, Jonas: Public Participation, in: Bodansky, Daniel/Brunnée, Jutta/Hey, Ellen (eds): The Oxford Handbook of International Environmental Law, 2007, p. 679 et seq. Fodella, Alessandro: Indigenous Peoples, the Environment and International Jurisprudence, in: Boschiero, Nerina/Scovazzi, Tullio/Pitea, Cesare/Ragni, Chiara (eds.): International Courts and the Development of International Law. Essays in Honour of Tullio Treves, 2013, p. 349 et seq. Gilbert, Jérémie: Indigenous Peoples’ Land Rights under International Law: From Victims to Actors, 2006. – Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the Africa Commission on Human and Peoples’ Rights, in: International and Comparative Law Quarterly, vol. 60, 2011, p. 583 et seq. Kiousopoulou, Lucy: La dimension écologique de la Convention européenne des droits de l’homme et les limites du contrôle juridictionnel, in: Spielmann, Dean/Tsirli, Mariaelena/ Voyatzis, Panayotis (eds.): La Convention européenne des droits de l’homme, un instrument vivant. Mélanges en l’honneur de Christos L. Rozakis, 2011, p. 261 et seq. MacKay, Fergus: A Guide to Indigenous Peoples’ Rights in the International Labour Organization, 2002.

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Quane, Helen: The UN Declaration on the Rights of Indigenous Peoples: New Directions for Self-Determination and Participatory Rights?, in: Allen, Stephen/Xanthaki, Alexandra (eds.): Reflections on the UN Declarations on the Rights of Indigenous Peoples, 2011, p. 259 et seq. Rodríguez-Piñero, Luis: Historical Anomalies, Contemporary Consequences: International Supervision of the ILO-Convention on Indigenous and Tribal Peoples (no. 169), in: Law & Anthropology, vol. 12, 2005, p. 55 et seq. Saladin, Claudia: Public Participation in the Era of Globalization, in: Picolotti, Romina/Taillant, Jorge Daniel (eds.): Linking Human Rights and the Environment, 2003, p. 57 et seq. Sands, Philippe: Human Rights, Environment and the Lopez-Ostra Case: Context and Consequences, in: European Human Rights Law Review, vol. 1, 1996, p. 597 et seq. Shelton, Dinah: Human Rights and Environment: Past, Present and Future Linkages and the Value of a Declaration, in: UNEP-OHCHR, High-Level Expert Meeting on the New Future of Human Rights and the Environment: Moving the Global Agenda Forward, 2009, available at: http://www.unep.org/environmentalgovernance/Portals/8/documents/draftpaper%20Hu manrightsnenvironment%20pastpresentandfuturelinkages.pdf. Tavani, Claudia: The Protection of Cultural Identity of Minorities in International Law: Individual versus Collective Rights, in: European Yearbook of Minority Issues, vol. 9, 2010, p. 55 et seq. Voyiakis, Emmanuel: “Voting in the General Assembly as Evidence of Customary International Law”, in: Allen, Stephen/Xanthaki, Alexandra (eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples, 2011, p. 209 et seq.

Part II Participation in Administrative Decision-making: Prerequisites and Principles in National and Supranational Law

Strengths and Weaknesses of Environmental Participation Under the Aarhus Convention: What Lies Beyond Rhetorical Proceduralisation? By Margherita Poto1 Abstract Though the Second Pillar of the Aarhus Convention (AC) marked the first milestone of the participatory rights season, new and more effective inputs seem to be needed in administrative legal systems of the contracting parties, in order to take a step forward in the implementation process: some virtuous cases shed a light on the participatory dynamics, however the recognition of the environmental interest as a fundamental right does not seem to be in the agenda of the AC parties yet.

I. Introductory Remarks Beyond any doubt, the Aarhus Convention can be seen as the litmus test of economic and political revolutions, triggering shifts in mentality as regard as participatory rights in the environmental decision-making process for all the contracting parties. These include public participation in all phases of the decision-making process and the right/duty to participate being seen as a fundamental right of the persons, individuals or associated. Taking into account the contributions in this section and their different viewpoints on the environmental participation, my comments will be developed according to the following structure: (1) first, a bird’s eye overview of the participatory mechanisms governing the AC in three aspects: in the preparatory work, in the legal provisions (Second Pillar) and in the ruling of the Compliance Committee; (2) second, some remarks as to the European Union (EU) level of compliance; and (3) finally, an analysis of the reasons behind non-compliance. This analysis will comprise of endogenous and exogenous factors which causing resistance from the parties. 1 My gratitude goes to all the friends and colleagues who have actively been contributing to the realisation of the project. Moreover, I am deeply grateful to Maria Laura Basile, Edwin, José and Phoebe Ramirez for their support during my research stay in Heidelberg, Summer 2014. Comments and exchange of ideas are welcome at [email protected].

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II. The AC Participatory Approach and its Shifts in Mentality: Political, Diplomatic and Legal 1. The Political Side It emerges from Cristina Fraenkel-Haeberle’s contribution that the impact of the AC on European democratisation has been massive, considering how it helped to open up doors to the participatory rights2. This has been particularly evident for the former communist countries, where activists and scholars participated in the negotiations and contributed to keep up the debate over the compliance mechanisms. Svitlana Kravchenko’s role in encouraging the full implementation of the AC is worthy of mention in this regard. As a supporter of the AC, she recalled that “the Convention was developed in part through the efforts of the public, and its primary subject matter is the right of the public to participate in environmental decisions that may affect them”.3 The political upheavals of the Central and Eastern European democratic spring in the late 1980 s and early 1990 s, had been a driver towards the promotion of public participation in the decision-making process. It has indeed been noted that: “[a]fter the fall of the Berlin Wall in 1989 and the breakup of the Soviet Union in 1991, Western European countries were determined to bring democracy from the West to the East, namely the countries of Central Europe, Eastern Europe, the Caucasus region, and Central Asia. In addition to promoting electoral democracy, they worked to promote the concept of public participation in government decision-making, focusing specifically on environmental decision-making.”4 2. The Shift in Diplomacy Another cultural shift that the AC has participated in is a dramatic change in the nature of international negotiations. Besides reflecting political turmoil, the AC contributed to dramatically change the scenario of international negotiations. The choice 2 Fraenkel-Haeberle, who considers the AC as a reply to the functional problems that the representative democracies have met in Europe in the past decades. 3 Kravchenko, p. 6. The author recalls that these features were observed by herself, who participated in most of the negotiations on behalf of the NGO Coalition. In order to pave the way towards the democratization of the Central and Eastern Europe, the Regional Environmental Centre for Central and Eastern Europe (REC) in Hungary provided support through funding, guidance and inspiration for a whole generation of local advocates for environmental democracy (public participation in environmental decision-making) through numerous projects, including the publication of a four-volume series of books titled “Doors to Democracy: current trends and practices in public participation in environmental decision making in the newly independent States” (see Kravchenko (ed.): The Regional Environmental Centre for Central and Eastern Europe, 1998, available at: http://www.rec.org/REC/Publications/ PPDoors/NIS/PPDoorsNIS.pdf). 4 Kravchenko, p. 6.

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of involving NGOs in negotiations and not only Parties and Signatories, has been observed as a unique characteristic among environmental conventions and perhaps in international law.5 In the document entitled What is the Aarhus Convention, Kravchenko describes in detail the new revolutionary method adopted to allow for broader participation in the decision-making and drafting of documents. “This was the first time an international convention was prepared with the broad and intensive involvement of environmental organisations. A coalition of such organisations (such as) the European ECO Forum (NGO Coalition), participated in the drafting and in all the negotiating sessions organized by the Economic Commission for Europe of the United Nations (UNECE). The coalition also organized, inside the official Aarhus Conference, a roundtable with Environmental Ministers about the practical importance of the Convention. The roundtable also discussed good and bad practices in countries and presented practical examples on how improvement can be achieved.”6 Since the main objective of the AC was to provide new avenues for participatory democracy in environmental matters, it made sense to apply those principles in the very process being used to create it. For these reasons, the AC has not only contributed to the shift of mentality in the legal cultures of the former communist countries, but has also facilitated the introduction of new participatory mechanisms in international negotiations. 3. A New Legal Mind-set The crowning achievement of these participatory negotiations consisted in the recognition of the fundamental right for every person “to live in an environment adequate to his or her health and well-being […and in] the duty, both individually and in association with others, to protect and improve the environment”7. The right of access to information, the right to participate in decision-making, and the right of access to justice in environmental matters are nothing other than the logical consequence of this recognition. Though the AC approach towards fundamental rights and duties is strictly procedural, this does not preclude an acknowledgement of the revolutionary impact of its provisions on the legal traditions of contracting parties. Turning more specifically towards content, the second part of the AC, known as the “Second Pillar”, is structured to allow broader participation in environmental decision-making. Public participation covers three domains: (1) Participation in the authorisation procedure for certain specific activities, mainly of industrial nature, listed in Annex I to the AC (art. 6 AC); 5

Kravchenko, p. 10. Taylor. 7 Preamble of the AC. The full text of the Convention is available in the proper language at: http://www.unece.org/env/pp/treatytext.html (last visited in June 2013). 6

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(2) participation in the formulation of environmental plans, programs, environmental policies as well as legislation, binding regulation and standards, that may have a significant effect on the environment (art. 7 and 8 AC); (3) participation in decisions concerning the deliberate release of GMOs into the environment8. Art. 6 AC clearly shows the active role played by the AC in encouraging the adoption of harmonised mechanisms, such as the Environmental Impact Assessment (EIA). The AC encourages the national legislator to adopt participatory mechanisms and suggests improvements in administrative performances. Peripheral to the participatory approach, but responding to the same logic of contributing to the openness and to the transparency of the public action, the EIA is associated with a particular standard form of process for the assessment of potential environmental impact as part of the decision-making process relating to a particular proposed activity. Though known in many countries in the UNECE region, this does not necessarily mean that a specific regime of EIA has to be established by the parties. It just means that a kind of review of the environmental impacts of particular activities has to be granted, where decision-making in relation to them takes place. The Implementation Guide of the AC states: “[t]his assessment is typically carried out by authorities at the level most relevant to the proposed activity or by an applicant or proponent of a project under their supervision. For example, local authorities will generally have authority to approve projects with solely local impact, while regional authorities may approve projects with an impact throughout a watershed. Some countries also require separate issuance of more than one permit, each of which may have environmental consequences.”9 The suggested harmonisation of environmental assessment proceedings, though giving enough flexibility to the parties in interpretation and implementation,10 is another example of how deeply the AC has influenced a wide variety of issues related to 8 In line with the Council Decision 2006/957/EC of 18 December 2006 on the conclusion, on behalf of the European Community, of an amendment to the Convention on access to information, public participation in decision making and access to justice in environmental matters [COM(2006) 338 final – Official Journal L 386 of 29. 12. 2006]. At European level this requirement is already met by certain provisions of Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms and Regulation (EC) No 1829/ 2003 on genetically modified food and feed. 9 Stec/Casey-Lefkowitz, p. 87. 10 Stec/Casey-Lefkowitz, p. 31 et seq. In the Implementation Guide, this case is quoted as an example of flexibility left to the parties: “In some instances, it is more or less clear that differences in national legislation or in legal systems may have an effect on the scope of a particular provision. An example is the determination of “significant” environmental effect. Under article 6 paragraph 1, parties are obliged to apply the provisions of article 6 to decisions on proposed activities which may have a significant effect on the environment. For those proposed activities not listed in annex I, parties must determine whether a proposed activity has a significant effect on the environment in accordance with its national law”.

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the national legal systems and cultures, addressing the administrative structure of the parties and requiring a participatory approach.

III. The Aarhus Convention Compliance: Internal Mechanisms and National Outputs 1. The Compliance Committee: a New Participatory Approach to Monitor Compliance The remarkable impact of the AC on the legal structures of the contracting parties has certainly been facilitated by the choice to assign to a Compliance Committee tasks to monitor the effectiveness of the AC implementation.11 The composition of the Compliance Committee mirrors the idea of a “participatory structure.” As for the approval of the AC itself, and consistently with the provisions about participation, the Compliance Committee adopts a completely new approach, thus opening up participatory rights. It is the AC’s objective to encourage “on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention. These arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention.”12 The Compliance Committee is therefore established with participatory features, namely: (1) the ability of NGOs to nominate experts for possible election to the Committee; (2) the requirement that all Committee members be independent experts rather than representatives of state Parties to the Convention; and (3) the right of any member of the public and any NGO to file a “communication” with the Committee alleging a Party’s noncompliance13. This innovative mechanism was proposed during the First Meeting of the Parties14 and its completely original approach provoked controversial reactions. It was sharply 11

For the first comments on the Committee see Koester, p. 83; Wates, p. 167. On the Compliance Committee see extensively The German Criteria for Access to Justice under the Scrutiny of the Aarhus Convention Compliance Committee and of the Court of Justice of the European Union: is there Room for Similar Proceedings against Italy? (Elena Fasoli), in this volume, p. 185. 12 Art. 15 AC. 13 Kravchenko, p. 4, who observes that “each feature is either unique or rare in international environmental law. The combination of all three in one compliance mechanism is remarkable”. 14 UN Economic and Social Council (ECOSOC), UN Economic Commission for Europe (ECE), Meeting of the Parties to the Convention on Access to Information, Public Participa-

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criticised by the United States15, strongly supported by the European Union16 and finally approved by acclamation. The Compliance Committee is grounded on the principles of participatory democracy. In compliance with Decision I/7 of the Meeting of the Parties (2002)17, the Compliance Committee consists of eight independent experts with recognised competence in the field and who serve in their personal capacity and are nominated not only by Parties and Signatories, but also by NGOs promoting environmental protection and falling within the scope of art. 10 (5) AC.18 This new participatory approach, adopted also in the monitoring of AC implementation has produced remarkable results in the functioning of the Compliance Committee, which now has a consolidated collection of cases; the Case Law of the Aarhus Convention Compliance Committee (2004 – 2011).19 tion in Decision-making and Access to Justice in Environmental Matters, Report of the First Meeting of the Parties, Annex 7, UN Doc. ECE/MP.PP/2 (17 December 2002), available at: http://www.unece.org/env/documents/2002/pp/ece.mp.pp.2.e.pdf (last visited in June 2013). 15 Kravchenko, p. 3, who was taking part to that Meeting, recalls that the United States criticized the “variety of unusual procedural roles that may be performed by non-State, nonParty actors, including the nomination of members of the [Compliance] Committee and the ability to trigger certain communication requirements by Parties under these provisions”. 16 Most Western European nations had not ratified the Aarhus Convention by the time of the First Meeting of the Parties, but they participated fully as Signatories. From the West, only three countries were full Parties by the time of the First Meeting (Denmark, France, and Italy), while 18 formerly Communist countries were Parties (Albania, Armenia, Azerbaijan, Belarus, Estonia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Poland, Republic of Moldova, Romania, Tajikistan, The Former Yugoslav Republic of Macedonia, Turkmenistan, and Ukraine). Another 19 countries from the West (Austria, Belgium, Cyprus, European Community, Finland, Germany, Greece, Iceland, Ireland, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and United Kingdom) were eligible to participate as Signatories, as were an additional four former Communist countries (Bulgaria, Croatia, Czech Republic, Slovenia). See Multilateral Treaties Deposited with the Secretary General, 13th Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, available at: http://www. unece.org/env/pp/ctreaty.htm (last visited in June 2013). 17 http://www.unece.org/fileadmin/DAM/env/pp/documents/mop1/ece.mp.pp.2.add.8.e.pdf (last visited in June 2013), Annex I. 18 Art. 10 (5) AC states that: “Any non-governmental organization, qualified in the fields to which this Convention relates, which has informed the Executive Secretary of the Economic Commission for Europe of its wish to be represented at a meeting of the Parties shall be entitled to participate as an observer unless at least one third of the Parties present in the meeting raise objections”. 19 This collection attempts to summarise the practice of the Compliance Committee of the Aarhus Convention. In many cases, the Committee had to interpret and apply Convention’s provisions to specific situations brought to its attention by the public and parties, as well as its own rules of procedures. Therefore, substantial case law was developed by the Committee during 2004 – 2011. Understanding this case law may help policy makers and practitioners apply and use the Convention in a more effective and uniform way promoting common standards for practical enforcement of environmental human rights in UNECE region.

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2. The European Union: a Good Level of Compliance due to Legal Tradition Focusing on the EU as a party to the AC, it is possible to find another connotation of the AC vis-à-vis the legal culture, (by) tapping into the feature of legal tradition.20 The EU has taken a leading role in environmental protection at international level. This is particularly evident in the AC implementation. International environmental law and more specifically the procedural guarantees the AC introduced, have contributed in re-shaping the EU legal order. This has had two implications: on one hand, the connection between environmental protection and human rights has improved at European level, at least from a procedural perspective. These improvements relate to the above mentioned improved terms of harmonisation of administrative proceedings concerning environmental impact assessments.21 As a consequence, the AC’s specific procedural requirements contributed to increase the number of cases decided by the Court of Justice of the European Union (CJEU) on the Convention. 22 20

Scott, p. 897; Scott/Rajamani, p. 469; Zito, p. 363; Chiavari/Withana/Pallemaerts, p. 45. This has been pointed out also by the AC Compliance Committee, commenting art. 6 (2) AC. “Most Member States seem to rely on Community law when drafting their national legislation aiming to implement international obligations stemming from a treaty to which the Community is also a Party. Moreover, the provisions of the EIA Directive, including those relating to public participation, are being directly invoked in some legal acts concerning provision of Community funding, for example in Annex XXI to Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund. Thus in practice they may be applied directly by European Community institutions when monitoring compliance with the EIA Directive on the occasion of taking decisions concerning Community funding for certain activities”. 22 Eckes, p. 1151. The author counts five cases ruled by the Court of Justice of the European Union (CJEU) in the past three years: C-182/10, Marie-Noëlle Solvay & Others v. Région wallonne; C-524/09, Ville de Lyon v. Caisse des dépôts et consignations, ECR [2010] I-14115; C-266/09, Stichting Natuur en Milieu & Others, ECR [2010] I-13119; C-240/09, Lesoochranárske zoskupenie VLK v. Ministerstvo zˇivotného prostredia Slovenskej republiky. As of 7 September 2012, four more cases are pending before the CJEU: C-605/11, Fin. v. Liga para Protecção da Natureza (LPN), OJ 2012 (C 58/4); C-530/11, Commission v. UK, OJ 2012 (C 39/7); C-260/11, Reference for a preliminary ruling from Supreme Court of the United Kingdom made on 25 May 2011: R., on the application of David Edwards & Another v. Envtl. Agency & Others, OJ 2011 (C 226/16); C-416/10, Reference for a preliminary ruling from the Slovak Republic lodged on 23 August 2010: Jozef Krizˇan & Others v. Slovenská insˇpekcia zˇivotného prostredia, OJ 2010 (C 301/11). The General Court has decided two cases concerning the Aarhus Convention: T-396/09, Vereniging Milieudefensie und Stichting Stop Luchtverontreiniging Utrecht v. Commission; T-338/08, Stichting Natuur en Milieu and Pesticide Action Network Eur. v. Commomission. It also mentions the Aarhus Convention in two previous cases: T-264/04, WWF Eur. Policy Programme v. Council, ECR [2007] II-911; T-37/04, Região autónoma dos Açores v. Council, ECR [2008] II-103. 21

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On the other hand, the EU’s participation in the AC (the so-called “Europeanization of the Aarhus Convention”) has limited the procedural autonomy of Member States. Christine Eckes has masterfully described this second implication; “[w] hen concluding a mixed agreement, the Member States are bound to comply with their obligations under international law (here the Aarhus Convention) and to give effect to EU law, including the EU’s international agreements which, pursuant to art. 216 TFEU become ‘an integral part of the legal order of the European Union’.” This leads to a situation in which the AC entails more far-reaching obligations for Member States under EU law rather than under international law. This is the case mainly because, under EU law, not only is the international agreement itself binding, but also its interpretation is subject to that of the Court of Justice of the European Union. This is not a peculiar phenomenon of the AC, but it becomes apparent and relevant in the application of the Convention due to its subject matter i. e. procedural rights and its great detail. The same concept has been affirmed by the AC Compliance Committee. Commenting on art. 6 (2) AC, for instance, the Compliance Committee observes that “when examining compliance by the Party concerned, the Committee must take into account the structural difference between the European Community and other Parties, and the general division of powers between the Community and its Member States in implementing Community directives”23. 3. Actions for Better Compliance All in all, the effort towards democratisation and Europeanisation has encountered structural and mental resistance, which has suggested to the European Environmental Bureau that the following recommendations24, which are valid for all of the “half compliant countries”, (apply) no matter what reason is behind the non-compliance. They are as follows: (1) Create public participation monitoring committees in all countries and at EU level; (2) invest in awareness-raising for citizens and training in effective use of public participation rights; (3) give priority to training and capacity-building for officials and citizens; (4) establish safeguards to ensure public authorities take substantive account of public comments when making decisions; (5) require information to be released within reasonable time-frames to give the public time enough to become informed and to prepare and participate effectively. Current deadlines barely fulfill these conditions; 23 24

Andrusevych/Alge/Konrad, p. 40. Hontelez.

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(6) require more proactive measures to inform the public, e. g. electronically, of opportunities to participate; (7) make notice procedures more citizen-friendly; (8) assert ad hoc groups’ right to participate; (9) courts and administrative authorities should directly apply the AC and Directives where national law conflicts with or does not fully implement them.

IV. Reasons Behind the Delayed or Scarce Compliance Despite the remarkable improvements toward openness of administrative powers, the AC has not marked a turning point as regard as substantial environmental participation. The struggle toward a fundamental right to a safe environment has been analysed from different perspectives in this volume. Claudia Sartoretti has asserted that “the Convention prefers to defend the right to a healthy environment in its “procedural” dimension”, rather than protecting it as a distinct and abstract obligation”25. In Paolo Turrini’s contribution, it has been underlined that the process toward a full recognition of the environmental rights as fundamental rights is slow, if not inconceivable in the short run26. Federica Cittadino has also scrutinised the relationship between procedural and substantial rights, drawing the quite comforting conclusion that “participatory requirements are functional to the realisation of substantive rights”27. Certainly, the problematic areas in implementing the Convention depends on “exogenous factors”, such as the discretion accorded to the parties in interpreting the AC rights, and the consequent challenges to deal with the legal cultures, as well as “endogenous factors”, such as the internal features of the AC itself. In this second area, the absence of a clear definition of substantive environmental rights is noteworthy. The AC’s Achilles’ heel has been pointed out by the doctrine. Mason refers to this lack as “a practical obstacle impinging on its commitment to human rights, as it arguably reduces the scope for public deliberation on the appropriateness of environmental decision-making according to competing social values”28. Similarly, Boyle acknowledges that the focus of the Convention is strictly procedural in content, limited to public participation in environmental decision-making, 25

The Aarhus Convention between Protection of Human Rights and Protection of the Environment (Claudia Sartoretti), in this volume, p. 43. 26 Participatory Rights and the Notion of Interest in Environmental Decision-making: a Theoretical Sketch and Some International Legal Considerations (Paolo Turrini), in this volume, p. 57. 27 Public Interest to Environmental Protection and Indigenous Peoples’ Rights: Procedural Rights to Participation and Substantive Guarantees (Federica Cittadino), in this volume, p. 73. 28 Mason, p. 26.

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access to justice and information. “The Aarhus Convention is widely ratified in Europe and has had significant influence on the jurisprudence of the European Court of Human Rights [(ECHR)…] The Aarhus Convention is important in the present debate because, unlike the ECHR, it gives particular emphasis to public interest activism by NGOs. But […] while the Convention endorses the right to live in an adequate environment, it ‘stops short, however, of providing the means for citizens directly to invoke this right.’ Moreover, it also stops short of giving the public any right to participate in decision-making on matters of policy. It is of course precisely at this point that governments make decisions about the balancing of social, environmental and economic objectives. The Convention is not completely blind to the point, because Article 7 provides that ‘[t]o the extent appropriate, each Party shall endeavor to provide opportunities for public participation in the preparation of policies relating to the environment.’ As any good lawyer will appreciate, however, this wording has little substance and cannot be portrayed as creating rights for individuals. However, no other human rights treaty goes even this far.”29

V. A Successful Model of Participation Under the AC Aegis: the Municipality of Capannori While drafting this comment, I have been tempted to find a prompt solution to the stumbling stone that is the lack of effective participation. I have searched therefore, for successful models and surprisingly happened to stumble across a successful one, which does seem to have a strong relationship with the AC implementation: The case of the municipality of Capannori, a small town in the Tuscan hillside, where every decision is taken with the consensus of the citizens and more surprisingly where every decision seems to be strongly environmentally oriented. The model seems to follow a well established procedure, structured in different aspects: (1) Design of public participation processes; (2) Analysis of the stakeholder’s interests; (3) Clear vision of capacity and resource; and (4) Practical solutions offered to environmental challenges. The effort towards a high level of transparency and participation has resulted in the decision to follow the so-called ‘Zero Waste Strategy’. In this regard, the official website of the Zero Waste Strategy has been reported that “[…] [l]ocal politicians recognise that the key to their success with door-to-door collection schemes and other zero waste measures, was the early and active consultation of residents. Meetings were held in public places to gather input and ideas and involve the local population in the Zero Waste Strategy. Printed information was sent to every address. A 29

Boyle, p. 471.

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few weeks before door-to-door collection was introduced in a given area, volunteers distributed free waste separation kits to all homes, including the various bins and bags required and further printed information. Volunteers were trained to answer residents’ questions about the new scheme, all of which meant that participation was smooth, immediate and effective”30. Capannori has been awarded as the Zero Waste Network’s Flagship Municipality for its proactive and participatory approach, inspiring other communities to aim higher than simply fulfilling recycling targets. Thanks to the long range vision of its leaders, problems have turned into opportunities, so that the transparent engagement with the population has transformed the Municipality’s achievements into a commonly shared goal.31

VI. Conclusion and Way Forward In conclusion, there have been many ups and downs in the AC implementation from inception. So far, however, the resulting legislation has not led to any real structural change which could significantly impact on environmental policies and most of all which could give substance to environmental rights. Certainly, the actions mentioned in paragraph III. 3., as well as the example of the flagship initiative of Capannori can create a solid basis to the furtherance of the implementation process, at least at European level, if one also considers their transversal nature in relation to the different legal backgrounds of the parties. The effective shift however, is certainly more structural in nature and has to deal with a new Copernican revolution, where the Earth has to be the centre of the system and where the ecological interest has to stand out as a fundamental right of the individuals. There is no shortcut to this process. Of most importance, is needed to come to the common consensus that “sustainable development, democracy and peace are indivisible”32 and shall be pursued with a unified approach. References Andrusevych, Andriy/Alge, Thomas/Konrad, Clemens (eds.): 2nd ed. 2004 – 2011, Lviv 2011, available at: http://www.unece.org/fileadmin/DAM/env/pp/Media/Publications/ACCC_Juris prudence_Ecoforum_2011.pdf, available at: http://www.unece.org/index.php?id=31320 (last visited in June 2013). Boyle, Alan: Human Rights and the Environment: A Reassessment, in: Fordham Environmental Law Review, vol. 18, 2007, p. 471. 30

http://www.zerowasteeurope.eu/2013/09/the-story-of-capannori-a-zero-waste-champion/ (last visited in August 2014). 31 http://www.zerowasteeurope.eu/wp-content/uploads/2013/09/ZWE-Best-practice-Ca pannori.pdf. 32 Maathai, p. 28.

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Chiavari, Joana/Withana, Sirini/Pallemaerts, Marc: The Role of the EU in Attempting to ‘Green’ the ICAO, ECOLOGICINSTITUTE, in: EPIGOV Paper no. 35, 2008. Eckes, Christina: Environmental Policy “Outside-In”: How the EU’s Engagement with International Environmental Law Curtails National Autonomy, in: German Law Journal, Special Issue, Vol. 13, 2012, available at: http://www.germanlawjournal.com/index.php?pageID= 11&artID=1466. Hontelez, John (ed.): How far has the EU applied the Aarhus Convention?, Report prepared for the European Environmental Bureau (EEB), 2007, available at: http://www.ucastverejnosti. cz/dokumenty/aarhus-eeb-2007.pdf. Koester, Veit: The Compliance Committee of the Aarhus Convention: An overview of Procedures and Jurisprudence, in: Environmental Policy and Law, vol. 37, 2007, p. 83. Kravchenko, Svitlana: The Aarhus Convention and Innovations in Compliance with Multilateral Environmental Agreements, in: Colorado Journal of International Environmental Law and Policy, vol. 18 – 1, 2007, p. 3. Maathai, Wangari: An Unbreakable Link: Peace, Environment and Democracy, in: Harvard International Review, vol. 29, 2008, p. 27. Mason, Michael: Information disclosure and environmental rights: The Aarhus Convention, in: Global Environmental Politics, vol. 10, 2010, p. 26. Scott, Joanne: From Brussels with Love: The Transatlantic Travels of European Law and the Chemistry of Regulatory Attraction, in: American Journal of Comparative Law, vol. 57, 2009, p. 897. Scott, Joanne/Rajamani, Lavanya: EU Climate Change Unilateralism, in: European Journal of International Law, vol. 23, 2012, p. 469. Stec, Stephen/Casey-Lefkowitz, Susan: The Aarhus Convention: An Implementation Guide, UN/ECE, UN Publication, 2000. Taylor, Mary (ed.): What is the Aarhus Convention?, UN/ECE document, available at: http:// www.unece.org/fileadmin/DAM/env/pp/Media/citizens_rights_under_Conv_e.pdf (last visited in June 2014). Wates, Jeremy: NGOs and the Aarhus Convention, in: Treves, Tullio/Frigessi di Rattalma, Marco/Tanzi, Attila/Fodella, Alessandro/Pitea, Cesare/Ragni, Chiara (eds.): Civil society, International Courts and Compliance Bodies, 2005, p. 167. Zito, Anthony: The European Union as an Environmental Leader in a Global Environment, in: Globalizations, vol. 2, 2005, p. 363.

The Implementation of the Aarhus Convention in Italy: a Strong ‘Vision’ and a Weak ‘Voice’ By Viviana Molaschi Abstract Lo scritto si occupa dell’attuazione della Convenzione di Aarhus in Italia, focalizzando l’attenzione sul I e sul II pilastro, ossia sull’accesso alle informazioni ambientali e sulla partecipazione ai processi decisionali che riguardano l’ambiente. Dopo una breve introduzione sul quadro assiologico e concettuale in cui si collocano i pilastri della democrazia ambientale consacrati dalla Convenzione, viene preliminarmente dedicato un paragrafo alle modalità di attuazione della stessa: recepimento in conseguenza dell’adattamento dell’ordinamento interno al diritto internazionale a seguito di ratifica; attuazione nell’ordinamento europeo attraverso Direttive, che, a loro volta, vengono recepite a livello nazionale dai vari Stati Membri; strumenti di controllo sullo stato di osservanza della Convenzione di tipo interno, in quanto previsti dalla Convenzione medesima (si pensi alla creazione del Comitato di Controllo o Compliance Committee). L’analisi dell’accesso alle informazioni ambientali prende in considerazione sia l’accesso alle informazioni come conseguenza di una richiesta avanzata da un soggetto – il c.d. diritto di accesso alle informazioni ambientali –, sia la diffusione delle informazioni relative all’ambiente da parte delle amministrazioni medesime. L’accesso alle informazioni viene inoltre inteso nella sua configurazione di “visione” funzionale alla “voce”, ossia alla partecipazione procedimentale, riprendendo le riflessioni di Occhiena, che, rifacendosi agli studi di D’Alberti, distingue anche in campo ambientale tra “partecipazione-visione” e “partecipazione-voce”. Per quanto concerne quest’ultima, vengono in particolare esaminati gli istituti partecipativi contemplati dalla disciplina della valutazione di impatto ambientale – “ordinaria” e “speciale” per le grandi opere ¢ e della valutazione ambientale strategica. Dallo studio emerge come in Italia la concretizzazione dei principi della Convenzione di Aarhus sia stata maggiore sul piano della “visione” che su quello della “voce”: si evidenziano infatti ancora numerosi gap partecipativi. Si rileva infine che il livello di attuazione della Convenzione è superiore nel caso di recepimento dei relativi pilastri da parte della normativa europea, in quanto quest’ultima, impattando sull’ordinamento degli Stati Membri, ne limita l’autonomia nella definizione dei procedimenti ambientali.

I. Preliminary Remarks The Aarhus Convention (AC), Convention on access to information, public participation in decision-making and access to justice in environmental matters, adopted

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by the UN Economic Commission for Europe (UNECE) in Denmark on 25 June 1998, recognises “the right of every person of present and future generations to live in an environment adequate to his or her health and well-being”1 and “the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations”2. These important statements can be set in a specific conceptual and axiological framework. The AC “links environmental rights and human rights”3: it is based on the awareness that “adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself.” To this end it “acknowledges that we owe an obligation to future generations”4, according to the principle of sustainable development, which founds a duty of environmental protection in the responsibility of everyone5. The idea that environmental safeguarding is not only the object of a right but also of a duty has been underlined by some Italian authors6, starting from the principles and values of the Italian Constitution. Art. 2 not only recognises and guarantees inviolable human rights, but expects that the fundamental duties of political, economic and social solidarity be fulfilled. The duty of solidarity enshrined in this article, which can also be referred to the environment, can justify the subjects of the legal system being charged with a duty of environmental protection. The AC is considered a milestone in the history of environmental legislation because it joins environmental protection to the level of democracy granted in the decision-making process7. In fact, as is pointed out in the Introduction to the Convention given by the UNECE, the AC “establishes that sustainable development can be achieved only through the involvement of all stakeholders”; “links government accountability and environmental protection”; “focuses on interactions between the public and public authorities in a democratic context”.8 The pursuit of environmental democracy is grounded on the so-called three ‘pillars’ of the Convention: 1

See Preamble and art. 1 AC. See Preamble AC. 3 See the Introduction to the Convention given on the website of the UNECE, available at: http://www.unece.org/env/pp/introduction.html. 4 See the Introduction to the AC. 5 The importance of the principle of responsibility in the technological society has been studied by Jonas. 6 The duty dimension of environmental protection has been researched deeply by Fracchia: see for example Introduzione, p. 93 et seq.; La tutela dell’ambiente come dovere di solidarietà, 2009, p. 491 et seq.; The Legal Definition of Environment: from Rights to Duties, 2005; Sulla configurazione giuridica unitaria dell’ambiente: art. 2 Cost. e doveri di solidarietà ambientale, 2002, p. 215 et seq. The author has investigated the link between environment and duty in his works on sustainable development: see Fracchia, Lo sviluppo sostenibile. 7 In these terms Siclari, p. 476. 8 See the Introduction to the AC. 2

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(1) Access to environmental information; (2) Participation in environmental decision making; (3) Access to justice in environmental matters. In this paper the focus will be on participatory rights, therefore on the first and on the second pillars.

II. The Implementation System of the Aarhus Convention: a Brief Outline Before analysing the level of fulfilment of the indicated pillars of the AC in Italy9, it is necessary to outline the main ways of how the AC has been implemented. Briefly, it is possible to distinguish three modes of implementation: implementation consequent to the reception system of international law adopted by the various States, implementation due to the introduction of international environmental law as part of the EU legal framework (which in turn affects the legal order of the Member States), and internal mechanisms of implementation, provided by the AC itself. First of all, the implementation of the AC depends on its reception under international law. In Italy, where the matter is regulated by art. 87 (8) and art. 80 of the Constitution, the AC has been ratified by Law 16 March 2001, no. 10810, and has consequently become part of the Italian legal system, limiting internal legislation, according to art. 117 of the Constitutional Charter11. As anticipated, the implementation of the AC is also the result of the incorporation of international environmental law as part of the EU legal framework, which impacts on the legal order of the Member States. Italy has been a founder of the EC, now the EU12, and art. 117 of its Constitution acknowledges the specific importance of EU law in the Italian legal system13. 9 For a general overview of success and obstacles to implementation, see the “Third update of the National report of Italy on the implementation of the Aarhus Convention” (January 2014), available at: http://www.minambiente.it/sites/default/files/archivio/notizie/na tional_report_italy2013_aarhus.pdf (last visited in September 2014). 10 According to art. 87 (8) Italian Constitution, ratification is a Presidential act, which, where provided, requires a previous authorization by a Law of Parliament. These cases are specified by art. 80 Constitutional Charter: treaties having a political nature, providing arbitration or legal settlements or entailing change of borders, financial burden or modification of legislation. 11 Pursuant to art. 117 (1) Italian Constitution, both State and regional legislative powers must be exercised in compliance with the constraints deriving, inter alia, from international obligations, that is to say the agreements concluded at international level. 12 Art. 11 Italian Constitutional Charter allows “the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations”. Moreover, “Italy promotes and encourages international organizations furthering such ends”. 13 According to this article, legislative powers shall be vested in the State and the Regions in compliance, inter alia, with the constraints deriving from EU legislation.

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Since the European Community signed the AC on 25 June 1998, the AC has been playing an important role in the European debate on environmental protection, and has been implemented under EU law in various directives (with a view to its ratification). Let us consider Directive 2003/4/EU on Public Access to Environmental Information, which has repealed the existing regime of Directive 90/313/EEC, and Directive 2003/35/EU, which has provided for public participation in respect of the drawing up of certain plans and programmes relating to the environment and has amended other environmental legislation, such as the Environmental Impact Assessment and Integrated Pollution Prevention and Control Directives (Council Directives 85/337/EEC and 96/61/EC) in so far as public participation and access to justice are implied. It must be also taken into account that on 18 May 2005 the European Union has become a Signatory Party to the AC, which means that according to art. 216 (2) of the Treaty on the Functioning of the European Union (TFEU)14 the provisions of the AC are binding on the EU institutions15 and on Member States. Under EU law, not only is the international agreement itself binding, but also its interpretation by the Court of Justice of the European Union (CJEU). As to the internal tools targeted at realizing implementation, art. 15 AC provides a mechanism of compliance review “of non-confrontational, non-judicial and consultative nature”, to be established by the Parties. The procedure was approved in Lucca in October 2002 (Decision I/7 on review of compliance) and led to the creation of a specific organism, the Compliance Committee, which monitors the effectiveness of the AC implementation16. Its decisions are not binding; however, its work has resulted in a consolidated collection of cases: the Case Law of the Aarhus Convention Compliance Committee (2004 – 2011). It is noteworthy that none of them regarded Italy. Art. 3 AC establishes that the provisions of the AC “shall not affect the right of a Party to maintain or introduce measures providing for broader access to information, more extensive public participation in decision-making and wider access to justice in environmental matters”. The AC establishes minimum standards to be achieved: this means that the guarantees foreseen by it represent the core of protection that can be implemented and improved.

III. Access to Environmental Information in Italy The first pillar of the AC concerns access to environmental information. 14 Pursuant to this provision, “[a]greements concluded by the Union are binding on the institutions of the Union and on its Member States”. 15 As to the EU, the AC applies to EU institutions, such as the Commission and the Council, and bodies and agencies, such as the European Environment Agency. 16 For an analysis of the Compliance Committee see, ex multis, Baiona, in particular p. 50 – 58; Koester, p. 83 et seq.

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For the sake of clarity, it is preliminarily important to distinguish various aspects and dimensions of the right of access, depending on the subject whose initiative determines the disclosure and on the context in which access is exercised. First of all, access to environmental information can be allowed “in response to a request for environmental information” (art. 4 AC): the availability of environmental information is the effect of an application by a subject of the public17. Secondly, access can be the consequence of “dissemination of environmental information” in possession of public authorities (art. 5 AC): in this case, there is an obligation of transparency as a direct responsibility of public authorities, which must “make environmental information available to the public” in a transparent way and ensure that “environmental information is effectively accessible” (here, one can consider means of dissemination like publicly accessible lists, registers or files, points of contact, electronic databases, and so on). It is important to highlight that access to information is also a precondition for participation in environmental decision-making. Some Italian authors have pointed out that participation in administrative procedures implies two aspects: (1) the ‘vision’ of the related documents and (2) making the private subject’s ‘voice’ heard, orally or in writing, before the final decision is taken18. The ‘vision’ and the ‘voice’ are logically connected, because without the former it is not possible to fully express the latter. So access to environmental information is also a constitutive element of participation in decision-making19. Access to information as a structural component of participation in environmental decision-making, that is the ‘vision’ functional to the ‘voice’, will be analyzed within the framework of the second pillar. As to access to information “in response to a request for environmental information”, art. 4 AC establishes a general or widespread entitlement to it “without an interest having to be stated” by the applicant. This is one of the most important provisions of the article from the Italian point of view, because the national general law on administrative procedures and access to administrative documents, Law 7 August 1990, no. 24120, requires at art. 22 that the subject interested in the access demonstrates “a direct, concrete and present interest, correspondent to a juridical situation protected and related to the document to which access is requested”. 17 Art. 2 AC defines “public” as “one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups”. 18 See D’Alberti, p. 1 et seq. 19 This conceptual paradigm is taken up by Occhiena, p. 315 et seq., in a work on the speciality of environmental participation. 20 An updated version of the Italian legislation mentioned in this paper is available at: http://www.normattiva.it.

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Moreover, in the environmental field access concerns environmental information, whether or not it is embodied in a document, unlike – once again ¢ from what is provided by Law 241/1990, which guarantees access only to administrative documents21. Finally, the AC establishes cases of exclusion from access, identifying interests which can be adversely affected by the disclosure (confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law; international relations, national defence or public security; the course of justice; confidentiality of commercial and industrial information where such confidentiality is protected by law in order to protect a legitimate economic interest; and so on). However, some of these interests encounter the limit of “information on emissions which is relevant for the protection of the environment”, which must be disclosed (in the case of confidentiality of commercial and industrial information, for example). Moreover, emissions into the environment can be at the basis of a strict interpretation of the grounds for refusal. The Aarhus regulation on access to information has been acknowledged in Italy by Legislative Decree 19 August 2005, no. 195, which has implemented Directive 2003/4/EC, now taken up again by Legislative Decree 3 April 2006, no. 152, the so-called Environmental Code, in its art. 3 (6). In order to understand the role of the AC in the Italian legal order, it can be interesting to have a brief look at the regulation of environmental information before the AC was implemented. The recognition of “the right of access to information on the state of the environment” to “every citizen” in Italy dates back to art. 14 of Law 8 July 1986, no. 349, which founded the Ministry of the Environment. This law was at the forefront in the European context and innovative in those times. It remained, however, a ‘dead letter’ as public administrations resisted its application and in some cases the provision was considered only programmatic22. The principle of general or widespread entitlement to access to environmental information fully entered the Italian legal system with the reception of Directive 90/ 313/EEC by Legislative Decree 24 February 1997, no. 39 (more than four years after the expiration of the reception date of the Directive). However, this regulation still provided a limited concept of environmental information, consisting of all information available in written, visual, audio form or contained in data bases (art. 3), and 21 Art. 22 Law 241/1990 gives a broad definition of “administrative document”, which comprises any representation, in whatever form it is expressed (graphic, photo cinematographic, electromagnetic, and so on), of the content of acts – whether internal or not – relating to a specific procedure, in the possession of a public administration, concerning activities of public interest, regardless of the public or private nature of their regulation. However, access regards documents materially existing, and not documents that must be drawn up. 22 The uncooperative behaviour of public administrations is underlined by Montanaro, p. 111 – 112.

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several cases of exclusion of the access (art. 4), sometimes introducing limitations which Law 241/1990 did not provide23. These limits have been overcome thanks to the acknowledgement of the principles of the AC in Directive 2003/4/EC, and, in Italy specifically, Legislative Decree 195/ 2005, which reduced the exceptions, established that they must be interpreted restrictively, and stated the rules as to disclosure of information on emissions into the environment. As for the dissemination of environmental information by public initiative, Law 349/1986 established that the Minister of the Environment should assure the widest disclosure of information on the state of the environment and a particular regime of publicity for the acts adopted by the National Council of the Environment whose knowledge could be of interest to the general public and an answer to informative needs having a diffuse character. This provision was more advanced than the indications contained in Directive 85/ 337/EC on the assessment of the effects of certain public and private projects on the environment. However, a step back was taken by art. 7 of Legislative Decree 39/ 1997, which limited the diffusion of environmental information only to the biennial report on the state of the environment (art. 1 (6) Law 349/1986). The same article committed the President of the Council of Ministers to determining the messages appropriate for the dissemination of environmental information by Rai, the Italian public television network. The analysis of the regulation of dissemination of environmental information shows a regressive trend of the Italian legal system, which continued also when the AC was ratified by Law 108/2001. The principles on the diffusion of environmental information penetrated the Italian legal order when Directive 2003/4/EC was implemented by art. 8 of Legislative Decree 195/2005, which requires that the public authority makes available environmental information held for institutional purposes, using information technologies. It is interesting to observe that art. 3 (6) of the Environmental Code, Legislative Decree 3 April 2006, no. 152, stating the general principles regarding “right of access to environmental information and of participation for collaborative purposes”, does not mention the diffusion of data concerning the environment. Notwithstanding the fact that dissemination is provided in some articles of the special part of the Code, this lack reflects the difficulty within the Italian legal system of implementing this right24. 23

This inconsistency is pointed out by Montanaro, p. 116, who gives the examples of letters c) and f) of art. 4 Legislative Decree 39/1997: c) matters that are, or have been, sub judice or under enquiry (including disciplinary enquiries) or that are the subject of preliminary investigation proceedings; d) material supplied by a third party without that party being under a legal obligation to do so. 24 For this observation see Occhiena, p. 329.

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Recently, public information has been taken into consideration again by Legislative Decree 14 March 2013, no. 33, on the reordering of the regulation of publicity, transparency and diffusion obligations of public administrations, which establishes that public administrations are obliged to publish on their websites environmental information in their possession (art. 40). Moreover, according to Legislative Decree 195/2005, they must publish the information due to be given to the Ministry of Environment on a specific section of their websites, easily accessible to the public. Likewise, acts of land governance like territorial plans, coordination plans, landscape plans and town planning tools are also subject to publication on a special section of the website (art. 39). It should be pointed out that this renewed attention for the environment must be contextualized in the battle against corruption that has led to Law 6 November 2012, no. 190, on measures to fight unlawfulness.

IV. Examples of Implementation of the Second Pillar of the AC in the Italian Environmental Code and in Other Legislation Relevant to the Environment The second pillar of the AC is represented by public participation in environmental decision-making. It comprises three different kinds of participation, depending on the activities and the procedures that come into consideration: public participation in decisions on specific activities (art. 6 AC); public participation concerning plans, programs and policies relating to the environment (art. 7 AC); public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments (art. 8 AC). As a preliminary remark, it is noteworthy that the Italian Environmental Code does not give any significant relevance to participation in the introductory part regarding “Common provisions and General Principles”. From art. 3 (6), entitled “Right of access to environmental information and to participation for collaborative purposes”, it emerges that participation is meant only in a collaborative sense. The other dimensions of public participation are not taken into account: neither participation as a defence, giving the private individual the possibility to assert his/her own rights in the preparatory phase of the public decision; nor, and this is more remarkable, participation as an expression of democracy, as an essential tool to involve civil society in the decision-making process25. Participation is meant only as an instrument useful for the public administration itself, which gives it the possibility to acquire a better knowledge of the facts and interests relevant to the decision. 25 On the meanings of public participation in public decision-making see, ex multis, Cassese, p. 13 et seq. Structural and functional aspects of public participation are also analyzed in the volume by Casetta, in particular p. 514 – 520.

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Moreover, what is really astonishing is that, despite the reference to the principle of participation in the title, the content of the article is dedicated solely to right of access to environmental information, and there is no statement on public participation. The main sector for the application of art. 6 AC, regarding participation in decisions on specific activities, is the Environmental Impact Assessment (EIA) procedure, which in Italy has, essentially, two forms: the ‘ordinary’ EIA and the ‘special’ EIA, regarding major works (infrastructure and industrial plants identified by the Government as strategic or of national interest)26. As to the procedure of ‘ordinary’ EIA, art. 24 of the Environmental Code, entitled “Consultation”27, preliminarily contains some provisions aimed at informing the public of the proposed project. In particular, the public is informed by publication of a notice both on the website of the “competent authority”28 and in a national or regional/local newspaper, depending on the level of the authority competent to carry out the procedure. The contents of the notice regarding the project and its possible main environmental impacts have been specified by Law Decree 24 June 2014, no. 91, converted into law by Law 11 August 2014, no. 116, which has modified art. 24. In particular, it must indicate where and how the relevant documentation will be available and the terms (60 days) within which it is possible to submit observations. It is important to underline that the European Union has recently issued a directive to reform the EIA, Directive 2014/52/EU, which amends Directive 2011/92/EU, with the goal of improving it under various aspects. The new directive aims at “strengthening public access to information and transparency”29: in order to “allow the public to access that information easily and effectively”, it provides that “Member States shall take the necessary measures to ensure that the relevant information is electronically accessible to the public, through at least a central portal or easily accessible points of access, at the appropriate administrative level”. Moreover, a reasonable time-frame shall be provided for allowing sufficient time for informing the public (art. 1, which amends art. 6 of the previous directive).

26 For an overview of the various environmental impact assessment procedures in Italy, see, ex multis, Milone, p. 135 et seq. 27 For an analysis of art. 24 Legislative Decree 152/2006, see Molaschi. 28 By “competent authority”, according to art 5 (1) let. p), Environmental Code, is meant: “the public administration that is responsible for the screening, the reasoned opinion, in case of assessment of plans and programs, and the final decisions on the EIA in case of projects”. As to the EIA provided at a national level, this authority is represented by the Ministry of the Environment, Land protection and Sea (art. 7 (5)). As for the EIA at a regional level, the competent authority is the public administration, having duties of environmental protection and valorization, identified by regional laws (art. 7 (6)). 29 See the Preamble of Directive 2014/52/EU.

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Once the duties of publicity and transparency are fulfilled, art. 24 of the Italian Environmental Code establishes that anyone who might be concerned can submit observations: even though their written character is not expressly specified, the article is commonly interpreted in the sense that they must be written. The decision as to the EIA must take into account, inter alia, the comments provided, examining them “concomitantly, singly or by groups”. According to the administrative judge, their rejection does not imply a detailed confutation. It is sufficient that from the acts of the procedure it emerges that they have been considered; a concise motivation of the negative evaluation, which does not necessarily have to regard every single argument of the proposer, is deemed adequate30. The Environmental Code also provides some participatory tools, that go beyond the guarantees of the Italian general law on administrative procedures, Law 241/ 1990. This is a symptom of a greater openness to public participation in the environmental field, even though there are some limits, which will be underlined. In particular, the regulation gives the possibility to call a public inquiry for the examination of the impact assessment study, of the opinions of the public administrations and of the citizens’ comments, which is concluded with a report on the works and on the findings, which are taken into consideration for the final decision. However, the call for the hearing depends on the willingness of the ‘competent authority’. Moreover, the completion of the public inquiry entails neither interruption nor suspension of the terms provided for the fulfilment of the preliminary activity of the procedure: this aspect puts time restraints on the inquiry. It is possible to forecast some changes regarding the time limits when the new Directive 2014/52/EU, which amends Directive 2011/92/EU, is implemented in Italy. The new Directive, in fact, underlines the importance of providing “reasonable timeframes for the different phases, allowing sufficient time for”, in particular, “the public concerned to prepare and participate effectively in the environmental decision-making”. To this end, it establishes that “the time-frames for consulting the public concerned on the environmental impact assessment report referred to in art. 5 (1) [of the Directive] shall not be shorter than 30 days” (art. 1, which modifies art. 6 of the previous directive). Finally, according to the Environmental Code, if the public inquiry has not taken place, the “developer” of the project31 can be called, also at his/her own request, to a synthetic cross-examination with the subjects who have submitted opinions and com-

30

See e. g. Cons. Stato, section IV, 1049/2009; Tar Lazio, section II, 5481/2005. By “proponent”, according to the Italian terminology (literally, in Italian, ‘proponente’), or “developer”, the expression used in the Directives that have regulated the EIA over the years, is meant, according to art. 5 (1) let. r) Environmental Code: “the public or private subject who elaborates the plan, program or project that falls under the regulation of the Code itself”. The Legislative Decree gives a definition that refers both to the environmental impact assessment and to the strategic environmental impact assessment. 31

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ments. The cross examination, like the public inquiry, is not the result of a request by the public concerned. Participation encounters limits also in the special procedure of environmental impact assessment regarding public works: infrastructure and industrial plants identified by the Government as strategic or of national interest32. The regulation of these special proceedings, simplified with respect to the ‘ordinary’ EIA, is not contained in the Code of the Environment, but in Legislative Decree 12 April 2006, no. 163, the Code of Public Contracts. In this procedure, the decision on the environmental compatibility of the projects is adopted by the Interministerial Committee on Economic Planning (in Italian: CIPE, Comitato Interministeriale per la Programmazione Economica), during the approval of the preliminary project, on the proposal of the Ministry of Infrastructure and Transport (and, in some cases, of the Ministry of Economic Development), which is formulated on the basis of the evaluation of the Minister of the Environment, Land Protection and Sea (art. 183 Legislative Decree 163/2006). The Ministry of the Environment, Land Protection and Sea takes into account possible observations of public and private subjects concerned. Although it is not specified, it is clear that the provision refers again to written comments. According to judicial decisions, the Minister has no obligation to motivate in a precise way on whether or not they have been considered33. Art. 7 AC, as previously anticipated, regards public participation concerning plans, programs and policies relating to the environment. The Italian general law on administrative procedures, Law 241/1990, does not guarantee participation in planning acts and procedures34, that means that participation in the environmental sector is wider than in other sectors. The main field where the implementation of art. 7 AC can be verified is the Strategic Environmental Assessment (SEA) procedure, regulated by the Environmental Code, which has acknowledged Directive 2001/42/EC, on the assessment of the effects of certain plans and programmes on the environment. The procedure is similar to the one provided for the EIA as to the notice of the procedure and the provisions aimed at ensuring that the documentation is at disposal of the public. However, there are differences regarding the level of participation granted. Participation consists only of “written comments” (art. 14 Environmental Code). In this case, the article establishes explicitly the written character of the observations, thanks to a clarifica32 In general, on public participation in the procedures of realization of major infrastructure see Pizzanelli. 33 This aspect is underlined by Ferrara/Milone, p. 2906. 34 According to art. 13 Law 241/1990, the provisions on participation in the administrative procedure do not apply to activity of the public administration directed at issuing normative, administrative general, planning and programming acts. However, the article preserves particular rules that regulate their adoption in specific sectors.

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tion in Legislative Decree 29 June 2010, no. 128. No possibility of public inquiry is provided within the procedure. Finally, as regards public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments, enshrined in art. 8 AC, it is important to clarify that an institutional procedure for public participation in preparing national legislation (i. e. laws adopted by Parliament or legislative decrees adopted by the Government within a delegation law) currently does not exist, even though there are some mechanisms for public involvement in legislative activities, like parliamentary hearings. However, according to art. 1 (14) of Law 15 December 2004, no. 308, which delegated the Government the power to reorganize the regulation on environmental matters, resulting in the Environmental Code, the Ministry of the Environment was obliged to establish through a specific act forms of consultation with Trade Unions, Business organisations and environmental NGOs for the preparation of the decrees of implementation (Decree 7 June 2005).

V. Closing Observations The foregoing developed analysis shows that in Italy the level of implementation of the first pillar of the AC, concerning access to environmental information and dissemination of environmental information, is higher than the level of the second pillar, regarding public participation in environmental decision-making. This is probably due also to the fact that, while in the field of access to environmental information it is possible to see a juridical tradition of a general character, which has resulted in a unique regulation that today is represented by Legislative Decree 195/2005, the approach of the legislator to public participation has always been of a special character, regarding the public intervention in specific environmental decision-making processes. The regulation on this matter is thus fragmented. Moreover, as to this latter pillar, some authors have underlined that the examination of the regulation reveals that public participation is ‘strong’ when it is a ‘vision’, and it is ‘weak’ when it is a ‘voice’35. In fact, there are many participatory gaps. First of all, participation is mostly limited to documental participation, like in the Italian law on administrative procedures, Law 241/1990. Surprisingly, this happens also in the case of the EIA regarding public works, which generally raise tough opposition and protests by the communities involved, and in the case of the SEA, an instrument capable of orienting administrative decisions from the planning phase, when plural options are still possible, including those regarding the siting of projects. 35

This aspect is pointed out by Occhiena, p. 332.

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Neither legislation nor interpretation given by judicial decisions impose on the public authority any obligation of complete and precise motivation on how the participatory contributions offered by the public concerned are considered, an aspect that weakens the effectiveness of public participation and environmental protection itself. In fact, environmental safeguards can be achieved if the environmental point of view is represented in decision-making procedures and public authorities have the duty to consider and evaluate it, as a ‘rule of the procedure’, it being understood that the power to decide belongs to the public administration36. When more advanced participatory tools are provided (like, in the ‘ordinary’ EIA, public inquiry, and cross examination), their regulation follows a top-down layout: there is not any obligation to call in response to a request ‘from below’, according to a bottom-up scheme. Finally, the evolution of Italian legislation with respect to the AC, with its ‘stops and goes’, shows that both access to environmental information and public participation are granted more effectively when the AC impacts national procedural autonomy through the intermediation of the EU implementation37. Under EU law, it is easier to ‘force’ the recalcitrant national legislator. As the AC Compliance Committee has observed, commenting art. 6 (2) AC: “[m] ost Member States seem to rely on Community law when drafting their national legislation aiming to implement international obligations stemming from a treaty to which the Community is also a Party”38.

References Baiona, Stefania: La Convenzione di Aarhus: il quadro istituzionale internazionale, in: Angeletti, Adolfo (ed.): Partecipazione, Accesso e Giustizia nel Diritto Ambientale, 2011, p. 17 – 70. Casetta, Elio/Fracchia, Fabrizio (eds.): Manuale di diritto amministrativo, 2013. Cassese, Sabino: La partecipazione dei privati alle decisioni pubbliche, in: Rivista trimestrale di diritto pubblico, 1/2007, p. 13 – 41. D’Alberti, Marco: La “visione” e la “voce”: le garanzie di partecipazione ai procedimenti amministrativi, in: Rivista trimestrale di diritto pubblico, 2000, p. 1 – 34. 36

In these terms see Ferrara, p. 9. Poto (forthcoming) highlights that “the AC entails far more reaching obligations for Member States under EU law than under international law”. On how the “[E]uropeanized” Aarhus Convention affects the procedural autonomy of Member States see Eckes, p. 1163 et seq. 38 See the Compliance Committee report for the third meeting of the Parties to the Convention, in Riga 11 – 13 June 2008 (ECE/MP.PP/2008/5/Add.10, 2 May 2008), available at: http://www.unece.org/fileadmin/DAM/env/documents/2008/pp/mop3/ece_mp_pp_2008_5_ add_10_e.pdf. 37

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Eckes, Christina: Environmental Policy ‘Outside-In’: How the EU’s Engagement with International Environmental Law Curtails National Autonomy, in: German Law Journal, vol. 13, 11/ 2012, available at: http://www.germanlawjournal.com/, p. 1163 – 1175. Ferrara, Rosario: Politiche ambientali e sistema delle semplificazioni amministrative: verso quali scenari?, in: Il Piemonte delle Autonomie, 2/2014, available at: http://piemonteautono mie.cr.piemonte.it/cms/index.php/politiche-ambientali-e-sistema-delle-semplificazioni-ammi nistrative-verso-quali-scenari. Ferrara, Rosario/Milone, Alberta: La valutazione di impatto ambientale delle opere strategiche, in: Sandulli, Maria Alessandra/De Nictolis, Rosanna/Garofoli, Roberto (eds.): Trattato sui contratti pubblici, vol. IV – Le tipologie contrattuali, 2008, p. 2881 – 2912. Fracchia, Fabrizio: Introduzione allo studio del diritto dell’ambiente. Principi, concetti e istituti, 2013. – Lo sviluppo sostenibile. La voce flebile dell’altro tra protezione dell’ambiente e tutela della specie umana, 2010. – La tutela dell’ambiente come dovere di solidarietà, in: Il Diritto dell’Economia, 3/4 2009, p. 491 – 508. – The Legal Definition of Environment: from Rights to Duties (17 November 2005), Bocconi Legal Studies Research Paper no. 06 – 09, available at: http://papers.ssrn.com/sol3/papers. cfm?abstract_id=850488. – Sulla configurazione giuridica unitaria dell’ambiente: art. 2 Cost. e doveri di solidarietà ambientale, in: Il Diritto dell’Economia, 2/2002, p. 215 – 259. Jonas, Hans: Il principio di responsabilità, 2002 (Italian translation). Koester, Veit: The Compliance Committee of the Aarhus Convention – an Overview of Procedures and Jurisprudence, in: Environmental Policy and Law, 2/3 2007, p. 83 – 96. Milone, Alberta: Le valutazioni ambientali, in: Grassi, Stefano/Sandulli, Maria Alessandra (eds.): I procedimenti amministrativi per la tutela dell’ambiente, part of: Ferrara, Rosario/ Sandulli, Maria Alessandra (eds.): Trattato di diritto dell’ambiente, 2014, p. 135 – 189. Molaschi, Viviana: Comment on article 24, in: Ferrara, Rosario/Ferrari, Giuseppe Franco (eds.): Commentario breve alle leggi in materia di urbanistica ed edilizia, 2015, forthcoming. Montanaro, Riccardo: L’ambiente e i nuovi istituti della partecipazione, in: Crosetti, Alessandro/Fracchia, Fabrizio (eds.): Procedimento amministrativo e partecipazione. Problemi, prospettive ed esperienze, 2002, p. 107 – 131. Occhiena, Massimo: Forza, debolezza e specialità della partecipazione ambientale, in: Arena, Gregorio/Cortese, Fulvio (eds.): Per governare insieme: il federalismo come metodo. Verso nuove forme della democrazia, 2011, p. 315 – 335. Pizzanelli, Giovanna: La partecipazione dei privati alle decisioni pubbliche. Politiche ambientali e realizzazione delle grandi opere infrastrutturali, 2010. Poto, Margherita: The Second Pillar of the Aarhus Convention: a comparative analysis of the implementing systems vis-à-vis their legal culture, forthcoming.

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Siclari, Domenico: La democrazia ambientale nel quadro dei diritti partecipativi e dell’accesso all’informazione ambientale, in: Grassi, Stefano/Sandulli, Maria Alessandra (eds.): I procedimenti amministrativi per la tutela dell’ambiente, part of: Ferrara, Rosario/Sandulli, Maria Alessandra (eds.): Trattato di diritto dell’ambiente, 2014, p. 471 – 501.

Participation of Environmental Associations in the Context of Nature Conservation Law in Germany By Julian Zwicker and Franziska Sperfeld Abstract Umwelt- und Naturschutzverbände sind global etablierte Akteure im Umweltschutz. In Personalunion repräsentieren sie zum einen die anthropozentrischen Bedürfnisse der Bürger und verteidigen zum anderen die Interessen der Umwelt im Sinne eines ökozentrischen Ansatzes. Umweltverbände sind im Laufe der letzten Jahrzehnte bekanntermaßen in die Rolle des Anwalts der Natur hineingewachsen. Sie rügen Verletzungen umweltrelevanter Rechtsvorschriften, sorgen für die Pflege und den Schutz der Umwelt als Allgemeingut und beraten gesellschaftliche wie staatliche Akteure in Umweltangelegenheiten mit ihrem Fachwissen. An bestimmten umweltrelevanten Entscheidungsprozessen des Gesetzgebers und der öffentlichen Verwaltung müssen Umweltverbände in Deutschland beteiligt werden. Gerade im Naturschutzrecht sind diverse staatliche Maßnahmen und Vorhaben an die Mitwirkung von Umwelt- und Naturschutzvereinigungen gebunden. Die Entwicklung und Anwendung entsprechender gesetzlicher Vorgaben zu untersuchen sowie Aussagen über deren Wirksamkeit zu treffen ist eine von vielen Aufgaben des Unabhängigen Instituts für Umweltfragen e.V. (UfU). Völkerrechtliche Vereinbarungen wie die Aarhus-Konvention sowie europarechtliche Vorgaben zum Umweltschutz und zur Öffentlichkeitsbeteiligung beeinflussen fortlaufend das nationale Instrumentarium. Die Umsetzung multinationaler rechtlicher Bestimmungen wirft dabei Fragestellungen und Unklarheiten auf, die einer Erörterung oder zumindest einer näheren Betrachtung bedürfen. Derartige Untersuchungen sind sowohl im gesellschaftlichen Kontext für Praktiker als auch im politischen Kontext für staatliche Akteure relevant. Der folgende Beitrag beleuchtet das naturschutzrechtliche Regelungswerk hinsichtlich der Beteiligung von Umweltverbänden in Deutschland und stellt es in Bezug zu den Vorgaben und Leitlinien der Aarhus-Konvention. Hierfür werden zunächst die Grundlagen und Voraussetzungen der Mitwirkung von Umweltverbänden im Naturschutzrecht dargestellt. Etwaige Parallelen und Widersprüche zu den Vorgaben der Aarhus-Konvention werden überdies kritisch untersucht. Zugleich werden Erkenntnisse und Ergebnisse eines derzeit laufenden UfU-Projektes zum Thema Verbändebeteiligung in diesem Kontext präsentiert. Diese geben einen Einblick in den wissenschaftlichen Umgang der Umweltverbände mit den Beteiligungsverfahren und stellen diesbezügliche Strukturen der Kommunikation und Kooperation dar.

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I. Introduction The Independent Institute for Environmental Issues (Unabhängiges Institut für Umweltfragen e.V. – UfU) initiates and assists scientific projects, movements and networks of public interest with a focus on changing ecologically unacceptable environmental conditions and fostering participatory decision-making structures. The department of Environmental Law & Participation (one of three departments) has dealt with issues of public participation and the involvement of environmental associations in administrative decision-making since the late 1990s, shortly after the founding of the institute in 1990. Observing and demanding adequate implementation of the Aarhus Convention (AC)1 principles (and corresponding EU frameworks) is a great concern of UfU and likewise an important challenge to European societies in general. Legal standing for individuals and associations of citizens in order to bring suits and claim rights in the name of nature, is not new to us anymore – as it indeed was for lawyers many years ago.2 Nevertheless, it is still necessary to discuss barriers, failures, new options, and the (positive or negative) effects of ‘modern’ law regimes. This relies on our generation’s awareness. To claim environmental interests and to participate in administrative decision making through non-profit associations is one opportunity for an individual to take (the mentioned) responsibility. This text picks up this aspect in a rather abstract but practically oriented manner by giving an overview of participatory rights and the activities of environmental associations regarding administrative actions for nature conservation. Suggestions will be given in some cases to underline the critical analysis of legal regimes and corresponding practices of environmental organisations. A recent project led by UfU3 aimed to facilitate co-operative work by environmental organisations in participation procedures by creating an online tool that should help them communicate, exchange information and work together on formal statements. A research project and a workshop with representatives of environmental associations from several Bundesländer were carried out to investigate the status quo of participatory structures in Germany. Moreover, a report was written to describe the results of the research so far. This report as well as the conclusions of the workshop provide the background for the following text. Much of the information is based on interviews with representatives of environmental associations from 8 of the 16 Bundesländer of Germany. The interview context combined with an analysis by UfU are displayed on the posters in chapter 9.5.1 to 9.5.12 of the report and were presented during the workshop. 1

Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus-Convention), 25 June 1998. 2 One of them might have been C. D. Stone, see Stone, p. 5 et seq. 3 See: http://www.ufu.de/de/projekte-umweltrecht/verbaendebeteiligung2.0.html (last visited in October 2014).

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II. Principals and Basic Structures of Mandatory Participation in Germany The terms ‘binding’ or ‘mandatory’ participation will refer to the obligation of administrative (governmental) institutions to consult the relevant organisations, and should not be understood as referring to obligations of the participants. The mandatory involvement of environmental associations is a specific mode of public participation under nature conservation law in Germany;4 in theory this procedure should help to compensate for deficiencies in executive activities in the field of nature conservation and landscape protection.5 Several obstacles, though, limit the number of bearers of participatory rights. These obstacles will be mentioned beforehand, with reference to the objectives of the AC. In Germany, only officially recognised associations can bear participatory rights in nature conservation law relating to mandatory involvement in administrative decision-making. Each member state of the AC is obliged to provide a legal system for appropriate recognition and support of organisations, groups and associations that follow the principals of environmental protection, art. 3 (4) AC. The German Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz (UmwRG))6 regulates the official recognition of environmental associations in sec. 3 UmwRG and therefore implements the AC principle mentioned before. 1. Criteria and State of Recognition Sec. 3 UmwRG sets up a legal regime containing five preconditions for the recognition of an organisation.7 Environmental organisations that are only active in a single Bundesland apply for recognition at the responsible ministry of the respective Bundesland. Environmental organisations which are active in more than two Bundesländer apply for recognition at the Federal Environment Agency (Umweltbundesamt) in Dessau.8 Either under sec. 3 (1) and (3) UmwRG (single Bundesland) or under sec. 3 (1) and (2) UmwRG recognition is to be granted, if the applying association 1. Predominantly and not just temporarily encourages the objectives of environmental protection according to its statutes,

4

C.f. Maaß/Schütte, p. 472. C.f. Maaß/Schütte, p. 472; c.f. Bunge, p. 313; see also Bundesverwaltungsgericht (BVerwG), Judgement 12 December 1996, 4 C 19.95, NVwZ 1997, p. 905. 6 Environmental Appeals Act of 8 April 2013 (Bundesgesetzblatt I p. 753), last amended by art. 2 (52) of the law of 7 August 2013 (Bundesgesetzblatt I p. 3154). 7 Sec. 3 (1) UmwRG. 8 See: http://www.umweltbundesamt.de/themen/nachhaltigkeit-strategien-internationales/an erkennung-von-umwelt-naturschutzvereinigungen (last visited in October 2014). 5

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2. Has been legally constituted for a period of at least three years at the moment of application, 3. Ensures the appropriate performance of its statutory duties, whereas the type and range of its previous activities, its membership and its overall efficiency or capacity have to be taken into account in this regard, 4. Pursues charitable objectives according to its statutes as understood in sec. 52 Fiscal Code of Germany (Abgabenordnung) and 5. Has an organisational structure that allows any person that tracks its objectives to enter the association as a member. A recent (March 2014) analysis conducted by the UfU displays the current state of granted recognitions in Germany.9 It shows that 102 environmental associations are recognised by the Federal Environmental Agency whereas 180 recognitions were processed by ministries of the Bundesländer. When adjusted by the number of overlaps (= recognition by the Federal Environmental Agency and a Bundesland ministry) we arrive at an amount of 236 individual environmental associations that have obtained recognition and thereby participatory rights. Another brief analysis by UfU included in the Desk Research – Report shows the common legal structure of these associations: 100 % of all recognised environmental associations in Germany are legally structured in form of a registered non-profit union (eingetragener Verein – e.V.).10 The popularity of this legal form is undisputable. The reason for its popularity in this field though is more interesting; therefore, it will be the focus of the following section. 2. Excursus: Compliance of sec. 3 (1) UmwRG with the AC Objectives The AC uses the terms ‘natural person’ and their ‘associations, groups and organisations’ to specify the public as a participant in administrative decision-making.11 Furthermore, art. 3 (4) AC binds a member state to support and appropriately recognise associations, groups and organisations that serve the principles of environmental protection.12 Having in mind sec. 3 (1) UmwRG, two veiled distinctions appear when comparing the different grammatical contexts and their meaning: (1) Relevant to verifying the proper implementation of an association’s duties – as a criterion of recognition (see above II. 1. (3)) – is its membership.13 9 Source: lists of recognised environmental associations available on the websites of the Federal Environmental Agency, available at: http://www.umweltbundesamt.de/themen/nach haltigkeit-strategien-internationales/anerkennung-von-umwelt-naturschutzvereinigungen (last visited in October 2014); c.f. Sperfeld/Zwicker/Stolpe/Zschiesche, p. 6 et seq., p. 39 et seq. 10 C.f. Sperfeld/Zwicker/Stolpe/Zschiesche, p. 39 et seq. 11 See art. 2 (4) AC. 12 See art. 3 (4) AC. 13 See sec. 3 (1) no. 3 UmwRG.

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(2) sec. 3 (1) UmwRG sets out another specific requirement for associations – namely the obligation to have an organisational constitution that allows any person who supports the organisation’s objectives to enter the association as a member; in other words: fluctuation within the membership. These two characteristics that an association needs to fulfil according to German law confine the potential field of associations to those which have a specific legal structure. In Germany, only associations that are legally structured in form of a registered non-profit union (e.V.) have a core group of members whilst providing a fluctuation of members generally. Thus sec. 3 (1) UmwRG is restrictive, such that recognition is practically only obtainable for associations with the legal structure of an e.V. Eventually, this statement was verified by the recently accomplished study mentioned before (see above I. 1.) showing that 100 % of recognised German environmental associations are an e.V. The AC aims to include as many environmental organisations as possible within its remit as bearers of rights.14 In comparison to the implicit aim of the AC, that has no restriction to a certain type legal structure, therefore, sec. 3 (1) UmwRG is deeply restrictive. The effect is that other environmental organisations which are theoretically able to participate in decision-making – like Greenpeace (with a determined circle of members), the Deutsche Umweltstiftung or WWF (structured as foundations) – cannot demand mandatory involvement in participatory procedures under nature conservation law. Environmental organisations in particular – as well as third parties – will ensure the enforcement of the objectives of the AC. It is therefore necessary to allow as many environmental groups as possible (including recognised environmental organisations and groups as well as third parties) to play an active role. Even though, in practice, the environmental conservation agencies do not scrutinise recognition requirements under sec. 3 UmwRG too closely, no association with a legal structure apart from an e.V. has yet applied to be recognised. Consequently many out of the several thousands15 of environmental organisations in Germany could use this circumstance as a reason to file lawsuits against Germany for non-compliance with the AC. 3. Participatory Rights As mentioned above (see II.), environmental associations obtain binding participatory rights on the basis of their role as an attorney for the natural environment itself; from a legal perspective, they watch over the administrative activities of the state. Thus, recognised associations hold rights connected to specific administrative decisions and processes within nature conservation law. Those rights are associated

14

C.f. Stec/Casey-Lefkowitz/Jendroska, p. 29. A Germany-wide study from 1998 came to a number of roughly 8400 environmental organisations in West Germany and 800 in East Germany, c.f. Roth/Rucht, p. 236. 15

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with duties imposed on administrative authorities; together these regulations constitute a procedural structure of participation when certain preconditions are met. The legal principles are indicated by sec. 63 Federal Nature Conservation Act16 (Bundesnaturschutzgesetz, thereafter BNatSchG), but differing legislation in the Bundesländer is in this case possible according to the German constitution.17 Thus, the nature conservation laws of the Bundesländer partially determine additional rules to that principal structure of participation. Generally the mandated involvement of environmental associations in administrative procedures is on hand according to sec. 63 (1), (2) and (4) BNatSchG when 1. A process initiated by the Bund (out of sec. 63 (1) BNatSchG) or by a Bundesland (sec. 63 (2) BNatSchG) is on hand, 2. An impact on nature/landscape is to be expected throughout the action (sec. 63 (4) BNatSchG reverse) and 3. The association is thereby affected in its statutory field of activities (sec. 63 (1) and (2) BNatSchG). ‘Participation’ – in reference to sec. 63 (1) BNatSchG – is the obligation of the authorities to give access to relevant documents, and the opportunity for associations to submit a statement. According to sec. 63 (4) BNatSchG, the Bundesländer have the specific right to narrow the range of actions with mandated participation to those which have not only slight impact on nature and landscape. Six of sixteen Bundesländer take advantage of this right and have thereby decreased the scope of the provisions with mandated participation. The above-mentioned deviations in laws of the Bundesländer are diverse, but can be basically characterised either as restrictions or as broadenings compared to sec. 62 BNatSchG. A restriction of the scope in general was just mentioned above. Another example is that one Bundesland demands additional formalities before participation is mandated.18 Two other Bundesländer allow trade and company secrets to be excluded from the relevant documents19, whereat this exclusion is already granted by sec. 63 (1) and sec. 29 (2) Federal Administrative Procedures 16

Nature Conservation Act of 29 July 2009 (Bundesgesetzblatt I p. 2542), last amended by art. 4 (100) of the law of 7 August 2013 (Bundesgesetzblatt I p. 3154). 17 Under art. 72 (3) German Basic Law (Grundgesetz). 18 Namely the requirement, that participation must be desired by the holder of the process or announced by the association; moreover the association is bound to inform authorities about its local office in order to participate, see NAGBNatSchG sec. 38 (1) and (5). 19 See sec. 30 (2) Naturschutzausführungsgesetz Mecklenburg-Vorpommern (NatSchAG M-V) of 23 February 2010 (GVOBl. M-V 2010, 66), last amended by art. 14 of the law of 12 July 2010 (GVOBl. M-V, 383, 395) and sec. 38 (2) Niedersächsisches Ausführungsgesetz zum Bundesnaturschutzgesetz (NAGBNatSchG) of 19 February 2010 (Nds. GVBl. 2010, 104).

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Act (Verwaltungsgerichtsordnung, thereafter VwGO). All these restrictions and exceptions have in common that they cause administrative effort for non-profit organisations or increase the scope of activities of administrative authorities that do not require consultation of those organisations. Such legislation eventually narrows the opportunities of environmental associations of being involved in administrative decision-making and could decrease the scientific interception of executive practice thereby. Although, at this point it should be at least discussed if environmental interests should be given priority above commercial privacy and freedom. Unfortunately, there is not enough space for such investigation in this chapter. Several diversifications of the BNatSchG standards arise in laws of nature conservation of the Bundesländer. Some Bundesländer add (according to sec. 63 (2) no. 8 BNatSchG) specific processes to the catalogue of activities that require mandated participation20, others fix formalities such as the date of document delivery (e. g.: ‘just in time’) or the scope of accessible information in order to facilitate the work flow between an association and the authority.21 The statute on nature conservation of Baden-Württemberg (NatSchG B-W) sets out a unique variation. According to sec. 66 (1) NatSchG B-W environmental associations can propose to supervise a certain natural area and moreover have the opportunity of receiving grants from the fiscal budget of a Bundesland to manage this challenge. Moreover, the laws of the Bundesländer Berlin and Hamburg require mandated participation additionally within certain legislative processes that concern laws on environmental issues.22 To give a precise description of the respective legislation and its practice in the Bundesländer of Germany would be inappropriate at this point. To conclude, though, the last paragraph on one hand illuminated the German system concerning the participation of environmental associations within nature conservation law. On the other hand the complexity that a common strategy and a corporate communication method would have to come along with has been displayed.

20 C.f. for Mecklenburg-Vorpommern NatSchG MV sec. 30 (1); for Sachsen sec. 33 (1) Sächsisches Naturschutzgesetz (SächsNatSchG) of 22 July 2013 (SächsGVBl. 2013 Nr. 8, 451); for Schleswig-Holstein sec. 40 (2) Landesnaturschutzgesetz (LNatSchG) of 24 February 2010 (GVOBl. 2010, 301). 21 C.f. for Mecklenburg-Vorpommern NatSchG MV sec. 30 (2); Niedersachsen NAGBNatSchG sec. 38 (1); Sachsen SächsNatSchG sec. 33 (2); Thüringen sec. 45 (2) Thüringer Gesetz für Natur und Landschaft (ThürNatG) of 30 August 2006 (GVBl. 2006, 421). 22 See sec. 45 (1) no. 1 Berliner Naturschutzgesetz (NatSchGBln) of 9 June 2013 for Berlin; sec. 21 (2) no. 1 Hamburgisches Gesetz zur Ausführung des Bundesnaturschutzgesetzes (HAGBNatSchG) of 11 May 2010 (HmbGVBl. 2010, 350), last amended by the law of 13 May 2014 (HmbGVBl., 167) for Hamburg.

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4. Basic Organisational and Co-operational Structures of German Environmental Associations The high number of environmental activists, action groups and associations in Germany forms a tightly knit network. Nevertheless, mandated participation in public administration procedures corresponding to nature conservation matters is exclusively aimed at recognised environmental organisations due to the displayed circumstances (see above II. 2.). A lot of associations gather in corporate offices to communicate, exchange information as well as experiences, and eventually enhance their participatory output. Most of the contextual and administrative work is managed by voluntary stakeholders. This fact is the basic and most significant background, which has to be taken into account with each observation of this kind.23 Moreover, it is a main influence (or constraint) on decision-making within an environmental association. A large part of participatory activity is carried out by a few large associations operating nation-wide due to their capacities in terms of finance, employees and scientific background. These organisations – e. g. Naturschutzbund Deutschland e.V. (NABU), Bund für Umwelt und Naturschutz Deutschland e.V. (BUND), or Schutzgemeinschaft Deutscher Wald (SdW) – have one federal office and other offices in the Bundesländer – usually in each of the sixteen Bundesländer. In turn, those agencies are subdivided into regional or local offices or groups. Depending on what range an official process or an action has, it is attended by the supra-regional, regional or local office in one Bundesland. The internal communication and co-operative operations are primarily determined by the aforementioned organisational structures of those associations. But small organisations also often show up as scientific experts with fast reactions due to their more independent structure when it comes to participatory activities. Smaller associations usually work only in a single Bundesland or exclusively on a regional and local level. The internal working structures are indeed diverse and depend on the employees, executive directors, legal constitutions and objectives as well as the general practical approach. However, co-operation between different associations occurs in nearly every Bundesland and is often managed through a corporate agency initiated by several associations.24 This corporate association is itself recognised in most cases.25 For exam23

C.f. Sperfeld/Zwicker/Stolpe/Zschiesche, p. 17 et seq. E.g.: agency of environmental associations of the Bundesland B-W (germ.: LNV B-W), working group of nature conservation of the Bundesland Berlin (germ.: BLN), working group nature conservation of the Bundesland Hamburg (germ.: AG Naturschutz), office of recognised environmental associations of the Bundesland Brandenburg (germ.: Landesbüro BB; not recognised), office of recognised environmental associations of the Bundesland NRW (germ.: Landesbüro NRW), working group of the Bundesland Sachsen (germ.: LAG Sachsen, not recognised). 25 See supra note 24. 24

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ple: ten recognised associations exist in Hamburg, the corporate office included. This office was founded by four of the nine (corporate office excluded) associations. Thus five associations still work separately, (which does not mean that a co-operation is impossible). The founding of such a corporate association is, as mentioned above, mostly intended to facilitate working procedures, enhance the flow of information and increase the significance of statements in participatory processes through constant exchange and co-operative implementation.26 Thereby, work efforts can become more efficient by splitting and subdividing fields of work and finally participating in decision-making procedures collectively, in form of group statements. It can, moreover, be presumed that this structure could be able to enhance the influence and significance of environmental associations in administrative decision-making. The next paragraph should respond to that thought.

III. Contents and Conclusions of the Status-workshop The focus of the workshop was to enable an exchange of theoretical and practical knowledge based on the experience of representatives of environmental associations. Together with experts from UfU, the Federal Ministry of Environment (BMUB), and other project partners, the group displayed a detailed picture of the status quo of participatory activities in environmental protection matters. The task for participants was to present a poster27 showing the structures and evaluation of participatory work within their particular association. The presented issues and difficulties were then discussed within smaller groups. For UfU, the findings will be used for the implementation of an online tool. Moreover the results are in every sense worthwhile for identifying the effects of the legal frameworks in participatory matters in practice and locating weaknesses that could be ameliorated. Additionally, the discussions were fruitful for an evaluation of the associations’ participatory activities and working structures. Nevertheless, it should be mentioned that the findings and conclusions are based on the presentations and discussions of the workshop and thus are not scientifically proven. In general, a significant determinant of the work flow within environmental associations is and has always been the scope of resources in every sense. Who is working where and how many volunteers are available? Who is an expert in what and how can someone (internal or external) be integrated in a process? Which effort can be managed and is valuable as to the associations’ duties and environmental protection as a

26

This information relies on details given by environmental associations, which were investigated by UfU through interviews and presented on posters during the workshop, see Sperfeld/Zwicker/Stolpe/Zschiesche, p. 45 et seq. 27 Posters: see Sperfeld/Zwicker/Stolpe/Zschiesche, p. 45 et seq.

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whole? Is the relation of work effort and its impact well-balanced? Such questions in detail accompanied the workshop. 1. Procedures of Participatory Work Understanding the basic procedures of participatory work is the first step to grasping the challenges and decisions environmental associations have to face in those cases. a) Administrative Procedure28 The administrative part of participation is quite similar in each of the Bundesländer of Germany. Despite this fact, it is useful to describe some of the slight differences that occur due to the particular legislation (see above II. 3.) or individual habits of administrative processes in the Bundesland. To be able to describe the latter is a specific benefit from the workshop discussions. In most cases, the administrative authority in power will inform and deliver the relevant documents (in terms of sec. 63 (1) or (2) BNatSchG) to a recognised association’s office.29 Whether this office is a Bundesland office of an individual association or the corporate agency of several associations depends on the circumstances within the Bundesland (cf. above II. 4.); the procedure though is nearly equal in both cases. If the documents are not delivered by the authority, the association needs to initiate an autonomous search for processes in the administrative registers or newspapers and then aim a corresponding proposal at the authority. At first glance, this procedure seems more complex and burdensome. But the few associations that work in this manner described it as being more effective – the reason being that they can thereby independently initiate at first sight a selection of favoured processes they want to be involved in. In either case, the relevant information will reach the associations office. There it will usually be re-prepared, organised, and subdivided concerning its local or regional impact. The documents will be transferred to local/regional working groups according to the individual structure or to the member organisations of the corporate association. Once they are on hand, the relevant topics of the proposal will be treated by a local group, an expert of the association, or any interdisciplinary group of volunteers. This step is very particular to the specific association, its dimension, work flows and capacity, amount of members, local networks, and connection to external experts or its specific habits. The implemented statements will then be handed over to the authorities directly by their authors or redirected to a corporate or executive office and will finally be handed over to the authorities often as a corporate or combined statement.

28 29

Referring to Sperfeld/Zwicker/Stolpe/Zschiesche, p. 14. C.f. e. g. Sperfeld/Zwicker/Stolpe/Zschiesche, p. 45, 51, 52, 56, 62.

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b) Communication Methods30 While working on statements in participatory procedures, the backbone is the crowd of volunteer workers. Even though plenty of separate and corporate associations nowadays refer to one or two employees when it comes to the scientific work on participatory processes, it is frequently still managed by volunteers. In spite of everything, the availability of such resources is partially rare and should become the focus of more detailed studies. It is therefore a question of how to get internal or external experts and locally concerned persons informed and involved in the procedure. It is moreover a question of how, within these structures, the work can become most effective. Analysing the structure of associated organisations’ institutions was of stronger concern during the project and within this paper. This is also due to the fact, that corporate associations have similar interests, goals and workflows already and thus are better suited for an overall comparison than single organisations. Additionally, research on the communication and co-operation procedures of single organisations would get out of hand at this point due to the mass of individual organisations and their communication structures varying widely from each other. Corporative associations have the purpose of collecting information, combining knowledge and functioning as a central office for a group of autonomous associations. Obviously, in most cases they were founded to facilitate and optimise the work on and production of statements within participatory procedures.31 Thus they usually aim to enhance the influence of environmental associations in administrative decision-making and provide a platform for communication in general at the same time. Plenty of associations have an email distribution list to spread important or urgent information and to communicate constantly. Frequently organised roundtables with all member organisations provide an exchange of knowledge and experiences as well as a personal touch of working together. Structures of filing and archiving statements and documents or the evaluation of work efforts in this field also in terms of exchanging knowledge are moreover implemented but not common in a corporative manner. Apart from the implementation of those methods, whether they are carried out depends on available resources and the workers’ free space. 2. Challenges Within Working Procedures32 Despite the existing methods of communication and co-operation, the involvement of volunteer workers is specific and not often easy to handle; this fact was brought up during the workshop and is a great concern for all environmental associations in the future. Even though it is not a definite nation-wide trend, the average age 30

Referring to Sperfeld/Zwicker/Stolpe/Zschiesche, p. 12 et seq. and p. 15. C.f. Sperfeld/Zwicker/Stolpe/Zschiesche, p. 45, 47, 49, 56 and p. 19 et seq. 32 Referring to Sperfeld/Zwicker/Stolpe/Zschiesche, p. 12 et seq. and p. 16 et seq.

31

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of volunteers is high and young hands are often not easy to find. Moreover new systems, like corporate online tools that eventually aim to facilitate specific procedures, are not easy to introduce to a certain group of staff that has its own, long-term established mode of operation. The personal aspect has another dimension. Plenty of associations stated that they lack work resources when implementing statements during participatory processes. The (partially growing) complexity of administrative proposals occasionally requires scientific knowledge and research that volunteers and environmental associations are just not able to provide. In this regard specialised advocates and external scientists are more and more being integrated in participatory procedures with greater significance in terms of environmental protection and public concerns. This in turn requires financial resources which is another huge challenge within participatory activities of environmental associations. Participatory work is one of many concerns that environmental associations deal with. Often, grants by the Bundesländer do not cover the costs that occur whilst participating in administrative procedures even though this work is of great public concern in terms of environmental protection and sustainability. Finally, opportunities are rare to evaluate internal processes, work efforts related to participatory procedures or methods that accompany work-flows. Even though evaluation is deemed to be necessary to reflect and eventually aims to facilitate work-flows, it cannot be afforded due to lack of capacity. Additionally, legal regimes do not oblige authorities to inform participants about the ongoing development of a process. Thus, there is a lack of capacity as well as a gap of information that hinders environmental associations to evaluate their work properly.

IV. Perspective Innovative structures could be helpful to generate and exchange fruitful knowledge of volunteers in cases where it is necessary and sufficient. On one hand, the additional effort of managing those instruments must be proportionate to the simplification they provide. On the other hand, the respect for voluntary work and personal characteristics have to be taken into account when introducing new instruments. In other words: new instruments for communication and for the exchange of information and knowledge could help manage the complexity of participatory procedures and enhance the impact of statements, but could also threaten to overrun existing structures within environmental associations. An adequate compromise needs to be identified and implemented especially by corporate associations and external observers like UfU. Moreover a frequent dialogue between scientific researchers (both social and legal) and practitioners is thereby needed. Introducing new instruments could eventually attract young activists and other members of the public to participate in environmental associations and therefore enhance environmental protection. Therewith, the work resources (and maybe scientif-

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ic networks) of associations could be increased and hence cause a sort of chain reaction concerning the lack of capacities in several fields of work. Still, it remains a challenge to integrate and inform external volunteers sufficiently without breaking rules of e. g. data protection or harming the integrity of environmental associations. A debate about the problem of financial resources though would require another essay. Mainstream political structures and legal limitations related to the disposal of the budget and the general structures of our capitalistic system, that requires competition and forces growth and thus conquers equality, equity, societal engagement and the environmental movement and protection, would have to be taken into account in such a context. Anyway, it is necessary to mention that environmental associations work on and bring forward public concerns despite the fact that there is a low budget and precarious employment conditions in some places. In terms of participatory procedures, they still serve and want to serve as the environments’ advocates. This circumstance, just to express one rational appeal, should be a greater concern for authorities and governments than it is these days. Participatory work by environmental associations supports administrative decision-making through the critical surveillance of executive activities and by fostering the recognition of environmental issues. One significant and complex issue is the discussion about legal regimes and their impacts on participatory activities in Germany. How do they fulfil and conform to the requirements given by the AC? Implementing its guidelines through national legislation was and will be a long term challenge for governments. National regulation often narrows guidelines, which should originally provide a wide application range. The implemented regimes can cause impacts in turn that prevent a certain effectiveness (e. g. effective participation, art. 6 no. 2 AC) that was first initiated by the original rule. Sec. 3 UmwRG obviously narrows the potential group of participants and therefore hinders certain representative institutions that are mentioned in the AC from participating within binding participatory procedures. This implementation cannot be in conformity with the AC, and, moreover, it overloads the capacity of those participants that are to be consulted by authorities and finally lowers the impact and significance of their work within administrative decision-making. Legal requirements complicate specific efforts and enable or facilitate procedures at the same time. Authorities do not have the obligation to inform participants about how their statement was taken into account. That causes a lack of information; sufficient evaluation is often prevented and organisations are not able to reflect and enhance their work-flow. Mandated participation according to sec. 63 BNatSchG causes these problems for non-profit organisations but also provides the whole regime itself as a necessary recognition of public representatives and a surveillance of executive activities by the state authorities. It is significant that interested and concerned people as well as organisations need to be involved in legislative procedures. Non-profit organisations and scientific experts should be given the opportunity to establish an adequate counterpart to econom-

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ic and commercial interests. Relevant persons and institutions should be financially and legally supported in a way, that environmental objectives and protection become an equitable or even superior interest. That is how legal regimes can become balanced and effective in terms of public and environmental interests. References Beck, Ulrich: Abschied von der Abstraktionsidylle. Die Umweltbewegung in der Risikogesellschaft, in: Politische Ökologie, vol 31, 1993, p. 20 et seq. Bischoff, Joachim/Lieber, Christoph: Die „große Transformation“ des 21. Jahrhunderts. politische Ökonomie des Überflusses versus Marktversagen, 2013. Bunge, Thomas: § 2 Beteiligung in umweltbezogenen Verwaltungs- und vergleichbaren Verfahren, in: Schlacke, Sabine/Schrader, Christian/Bunge, Thomas (eds.): Informationsrechte, Öffentlichkeitsbeteiligung und Rechtsschutz im Umweltrecht, Aarhus-Handbuch, 2010, p. 135 et seq. Keupp, Stefan: Umfangreiche wie effektive Beteiligungs- und Klagemöglichkeiten für Umweltschutzvereinigungen?, UfU-Studie, 2009. Keupp, Stefan/Zschiesche, Michael: Die Aarhus-Konvention: Bürgerbeteiligung in neuer Qualität, UfU-Paper, 2010, available at: http://www.aarhus-konvention.de/media/content/files/ Studien/Hintergrundpapier_Aarhus_Final.pdf (last visited in January 2015). Koch, Hans-Joachim (ed.): Umweltrecht, 2014. Maaß, Christian/Schütte, Peter: § 7 Naturschutzrecht, in: Koch, Hans-Joachim (ed.), Umweltrecht, 2014, p. 417 et seq. Roth, Roland/Rucht, Dieter (eds.): Die sozialen Bewegungen in Deutschland seit 1945, ein Handbuch, 2008. Sperfeld, Franziska/Zwicker, Julian/Stolpe, Fabian/Zschiesche, Michael (eds.): Verbändebeteiligung 2.0, Desk Research Report 2014, available at: http://www.ufu.de/de/projekte-umwel trecht/verbaendebeteiligung2.0/report.html (last visited in January 2015). Stec, Stephen/Casey-Lefkowitz, Susan/Jendroska, Jerzy: The Aarhus Convention: An Implementation Guide, Economic Commision for Europe (UN/ECE), 2000. Stone, Christopher D.: Should trees have standing? Toward legal rights for natural objects, 1972. Tschimpke, Olaf: Staatliche Förderung von Umweltverbänden – warum nicht?, in: Forschungsjournal Soziale Bewegungen, vol. 1, 2011, p. 41 et seq. Zschiesche, Michael/Sperfeld, Franziska (eds.), in: Umweltorganisationen als relevante Akteure nachhaltiger Transformationsprozesse, available at: http://www.ufu.de/de/projekte-um weltrecht/umweltverb%C3%A4nde-als-relevante-akteure-nachhaltiger-transformationspro zesse.html (last visited in January 2014).

Participation Under REACH – Stakeholder Interests and Implementation of EU Secondary Law By Nicola Below Abstract Der vorliegende Beitrag befasst sich mit Partizipationsprozessen und -arrangements der Europäischen Chemikalienregulierung. Zunächst liefert er eine Definition des Begriffs Partizipation im spezifischen Verwaltungskontext, welcher den Rahmen für die Analyse liefert. Die eigentliche Analyse zielt darauf ab, die im Zuge der Verordnung (EG) Nr. 1907/2006 zur Registrierung, Bewertung, Zulassung und Beschränkung chemischer Stoffe (REACH) implementierte Partizipation zu beschreiben und anhand von Erfahrungen von Praktikern zu bewerten. Einsichten aus der Praxis wurden mittels qualitativer Interviews mit Repräsentanten von umweltlich orientierten Nicht-Regierungsorganisationen gesammelt. Die Bewertung erfolgt in zwei Schritten. Zunächst wird auf den allgemeinen Rahmen, der von Funktionszuschreibungen von Partizipation geprägt wird, eingegangen. Dabei wird nicht nur dargestellt wie und zu welchem Zweck Praktiker sich beteiligen, sondern auch welchen Schwierigkeiten und Zwängen sie sich im Allgemeinen gegenüber sehen. In einem zweiten Schritt werden anhand des Beispiels der Entscheidungsfindung im Rahmen von Ermittlung von Zulassungserfordernissen und Beschränkungen bezüglich bestimmter besorgniserregender bzw. gefährlicher Substanzen die Umsetzung der Maßgaben des Art. 8 Aarhus Konvention dargestellt und anhand der Erfahrungen aus der Praxis evaluiert. Dabei ergeben sich folgende Ergebnisse: Da unter REACH eine Vielzahl an Partizipationsprozessen bestehen, haben Praktiker mit begrenzten oder wenigen Ressourcen Schwierigkeiten sich ihren Ansprüchen entsprechend zu beteiligen. Bei den weniger gut ausgestatteten Nichtregierungsorganisationen kommt es aus diesem Grund zu Kooperationen und Arbeitsteilungen über die Grenzen der Interessen hinweg. Dabei ist es für die Leistungsfähigkeit von Partizipationsprozessen nicht entscheidend, ob die einzelnen Maßgaben des Aarhus Konvention korrekt umgesetzt oder gar großzügig implementiert wurden. Insbesondere bei der Vielzahl an Partizipationsprozessen unter REACH, die bisweilen aufeinander aufbauen und zu Teilfragen Teilhabechancen bieten, ist der Fokus auf das Zusammenspiel der einzelnen Partizipationsprozesse zu erweitern und zu hinterfragen, wie über die einzelnen Teilschritte hinweg Partizipation effektiv gestaltet werden kann. Dabei sind insbesondere die Partizipationsprinzipien des Übereinkommens zu fokussieren und an erweiterten Rahmenbedingungen, die durch die Akteure und deren Umfeld sowie den zugrunde liegenden Fragen der umweltbezogenen Entscheidung gesteckt werden, zu messen und anzupassen.

I. Introduction This contribution analyses participation in the European chemicals regulation system as foreseen in the European Regulation concerning the Registration, Evaluation,

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Authorisation and Restriction of Chemicals1 (REACH), within the background of the Aarhus Convention2 (AC). Despite the fact that REACH was enacted under the competency provisions of the internal market (art. 114 Treaty on the Functioning of the European Union (TFEU)), it is unquestioned that it represents an important piece of European environmental legislation.3 REACH, which was enacted in 2006, aims at a high level of health and environment protection, as well as the free circulation of chemical substances on the European internal market (art. 1 REACH). It was enacted to enhance and improve the former chemical regulation system, which proved to be overburdened and ineffective with regard to knowledge gained as to the impact of chemical substances and the response to potential harms.4 In summary, REACH introduces a hazard information gathering, exchange and processing system for the purpose of administrative decisions, which also provides possibilities for stakeholders and the public to participate in decision-making processes, and to inform themselves about such processes and their outcomes in general and in particular. Such decisions do not only aim at management activities, but also plans and programmes are to be set up, as well as executive regulations to be enacted. As a consequence in the chemicals decision-making arena, not only the differing economic, health and environment interests compete with each other,5 but also the interests generated on local, regional, national, European and international level come into play. The AC sets in its ‘second pillar’ (art. 6, art. 7 and art. 8 AC) procedural obligations for public authorities in environmental decision-making with regard to the involvement of the ‘public’6 – and the ‘public concerned’7.8 Those procedural obliga1 Regulation (EC) no. 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/ 45/EC and repealing Council Regulation (EEC) no. 793/93 and Commission Regulation (EC) no. 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/ EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (Text with EEA relevance) (OJ L 396, 30. 12. 2006, p. 1 et seq.). 2 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. 3 Environmental protection needs to be considered as a horizontal aim of the European Union (art. 11 Treaty of the European Union (TEU)). 4 An improvement which is often referred to as “overcoming toxic ignorance”. Führ, para. 2 et seq. See also Stokes/Vaughan, p. 414; Führ, para. 6 et seq. 5 In any case, even the single interests are in parts divided, too. The environmental interest may be divided into animal and environment interest, health interests may be divided into workers’ health and population health interest, economic interest may be divided into industry and small and medium size enterprises interests etc. 6 In the meaning of individual persons or groups (art. 2 (4) AC). 7 In the meaning of the public affected, likely to be affected by or having an interest in the environmental decisions-making, such as non-governmental organisations (NGOs) (art. 2 (5) AC). 8 The Convention addresses in its first and third pillars, access to environmental information (art. 4 and 5 AC) and access to justice with regard to environmental matters (art. 9 AC).

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tions aim at introducing participation elements merely in the form of principles which need to be considered for government decision-making procedures, if such procedures are environmentally significant (art. 6 and 8 AC) or have a certain relation to the environment (art. 7 AC).9 As repeatedly acknowledged in the preamble of REACH, as well as set out in the aims and diverse other measures of the Regulation – such as the assessment of environmental impacts of substances – most decisions under REACH have high environmental significance. This contribution describes on a less detailed level, the very diverse and elaborate participatory system based on REACH to show the efforts made in this sector of environmental legislation (section III.). This analysis is followed by a general evaluation of the system by environmental NGOs (section IV.1.) and a focused evaluation against the background of art. 8 AC (section IV.2.). Both evaluations are based on qualitative interviews carried out with NGO representatives, who add environmental interests to the process. In the last section of this analysis, a conclusion is drawn (section V.). The following section sets out in brief, the scope of the investigation by stating a definition of participation with regard to administrative decision-making (section II.).

II. Definition of Participation In literature a variety of definitions of participation follow the intention to operationalise the term in a specific analytic context.10 The same approach is chosen here. With regard to a general understanding, participation describes intentions of the public to influence political choices.11 However, the forms of influence are distinct, for example formal – such as legally codified, and informal – such as non-legally codified.12 In an administrative context, a definition of participation describes “[…] diverse legal forms of encounters between state administration and non-governmental societal actors […]”.13 Since the contribution aims at participation procedures, the first and third pillar will not be discussed. 9 UNECE (2014), p. 122. In any case, the text of the Convention is somewhat confusing if applied on European level as it refers to “national legislation”. However, it is apparent, that European legislation has an impact on national communities. This issue will not be reflected in this discussion. 10 Peters, p. 3. 11 Participation means “[…] voluntary activities by individual citizens intended to influence either directly or indirectly political choices at various levels of the political system”, Kaase/Marsh, p. 42. 12 Kersting, p. 24; Arbter/Handler, p. 10. An alternative reading of „informal“ participation aims at forms of participation which originate from civil society itself and are not enacted by state authorities. See Newig, p. 487. 13 Own translation of Rossen-Stadtfeld, para. 65.

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The forms of encounters made between state administration and societal actors, vary considerably respecting the different possibilities on how the encounter is carried out. Administrative actions range from specific legally embedded processes to simple administrative actions,14 as well as, from occasion-dependent decision-making processes to actions not depending on specific occasions.15 This variety of encounters made, are best addressed in reflecting the common understanding that administrative processes are merely phase-specific organized communication and information exchange processes.16 Respecting further conditions of such processes, encounters may be distinguished with regard to their level of institutionalisation. They may be designed in form of continuous cooperation, for example through networks, or only foreseen at a specific point in time. Besides, the framework conditions also depend on supporting structures and means, such as background information on the issue subject to decision, as well as, the condition for and influence of participation, which under the AC is perceived to be a pre-requisite to participation itself.17 Non-governmental societal actors may additionally be distinguished with regard to their motivation in being involved in the process. The distinction draws a partly blurred line between participation based on legal concerns, vested or bare interest, as well as, participation of the public as an end in itself, aiming at transparency as a condition of democratic decision-making.18 In decision-making processes concerning substances, industrial actors are directly affected by the decision made and thus their involvement is of a different nature than the involvement of other societal actors. In general, they have stronger influencing and defensive possibilities due to specific procedural rights. To this end, registrants have a bipolar communicative relation with the deciding administration. The analysis carried out in this contribution aims however at other actors, not directly affected by these administrative decisions. These are NGOs, such as consumer, environment or health as well as industry organisations, or the public, which are also called third parties (‘interested parties’ or ‘stakeholders’ in REACH).19 As a result, the term ‘participation’ is applied in this context as giving societal actors possibilities to influence administrative decisions by means of: 1. […] formal and informal information exchange and communication process. 2. […] between third parties – whether natural persons or organisations – and public administration.

14

See Hermes, para. 22. Schmidt-Aßmann, para. 47 et seq. 16 Schmidt-Aßmann, para. 2. 17 UNECE (2014), p. 166. 18 As stipulated in art. 15 TFEU. 19 Schneider, para. 69 et seq. 15

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3. […] not only covering such communication processes but also the respective institutional framework conditions. The definition combines the three elements of the analysis grid, addressed in this contribution. First, the information exchange and communication processes themselves determine the subject matter of the analysis (bullet 1). Second, only processes between specific actors – third parties and public administration – are considered (bullet 2). Third, the analysis not only focuses on the processes themselves, but also on conditions which may have positive or negative impacts on such processes.

III. Participation in European Union Chemical Regulation This section analyses participation arrangements implemented under REACH, taking into account the definition of participation in the public administration decision making context. Participation aims at the involvement of specific actors (section I.). Participation fulfils specific functions (section II.). Participation arrangements exist in the form of cooperation with the European Chemicals Agency (ECHA) (section III.), as well as in the form of consultation procedures along with the single decision-making processes (section IV.). 1. Actors Involved: Stakeholders and Interested Parties European chemical regulation provides several possibilities for ‘interested parties’ or ‘stakeholders’ to get involved. REACH does not define the terms ‘stakeholders’ or ‘interested parties’. The ECHA website states that stakeholders are “all organisations and individuals interested in or affected by the chemicals regulations”.20 As a result, there is no clear distinction between ‘interested parties’ and ‘stakeholders’. However, the ECHA introduced a specific group under the term ‘accredited stakeholder organisations’ (ASO), which may contribute to consultation procedures21 and which are entitled to a more elaborate cooperation. Organisations which intend to gain the status of an ASO have to file an application to be formally accepted by the ECHA.22 In doing so, such an organisation becomes more visible to the ECHA and a more continuous cooperation is envisaged.23 In addition to the relatively low requirements demanded of an ASO, the cooperation with regard to the ECHA’s committees also requires that the organisation is listed in the European transparency 20

See: http://echa.europa.eu/web/guest/about-us/partners-and-networks/stakeholders. See section III.3. 22 See: http://echa.europa.eu/about-us/partners-and-networks/stakeholders/how-to-becomean-accredited-stakeholder-organisation. 23 See: http://echa.europa.eu/web/guest/about-us/partners-and-networks/stakeholders/coope ration-with-accredited-stakeholder-organisations. 21

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register (Register of Interest Representatives maintained by the European Commission).24 2. Functions of Stakeholder Involvement Cooperation (or engagement) with an ASO builds on two key-pillars. On the one side, engagement shall serve to give feedback as to the areas of the ECHA’s jurisdiction. The ASO shall also provide scientific and technical information on the issues involving substance regulation, but also articulate their needs with regard to the process of participation itself.25 On the other hand, the ASO shall serve to multiply and facilitate the dissemination of information from the ECHA to their respective fields of actions, especially with a view to their member organisations.26 3. Cooperation with the ECHA There are diverse possibilities for stakeholders to cooperate with the ECHA. Such cooperative arrangements give stakeholder representatives opportunities to participate directly and on an ongoing basis. The most prominent possibility is most likely the opportunity to be represented on the Management Board (art. 79 (1) REACH). Each one of the three stakeholder representatives is appointed by the European Commission, taking into account the proposals of the European consumer, environment and health organisations upon request of the Commission services. Although those representatives do not have voting rights (art. 79 (1) REACH), their influence should not be underestimated, since the Management Board should make sure that the Agency involves the stakeholders (Recital 98 REACH). Moreover, ASO representatives may participate in Committee meetings of the Risk Assessment Committee (RAC), the Committee for Socio-economic Analysis (SEAC), as well as the Member States Committee (MSC) or their working groups as observers without voting rights (art. 6 (6) Rules of Procedures (ROP) for RAC, SEAC and MSC27).28 The same applies to the meetings or working groups of the Forum for Exchange of information on Enforcement (Forum) (art. 6 (7) ROP for 24

ECHA (2011a). ECHA (2011b). 26 ECHA (2011b). 27 Rules of procedures for the Risk Assessment Committee, Helsinki, 28 September 2012, MB/40/2012(1) final. Rules of procedures for the Committee for Socio-economic Analysis, Helsinki, 28 September 2012, MB/40/2012(2) final. Rules of procedures for the Member States Committee, Helsinki, 28 September 2012, MB/40/2012(2) final. Dublin, 21 March 2013, MB/14/2013 final. 28 Further requirements include listing in the EU transparency register (see also ECHA (2011a)) and that they conform to the “ECHA Code of Conduct for observers from stakeholder organisations at ECHA meetings” (art. 6 (6) last sentence of the rules of procedures). 25

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Forum29). Observers access the same documents as the members of the Committees or the Forum (art. 6 (12) ROP for RAC, SEAC and Forum, art. 6 (13) ROP for MSC). However, observers may be excluded from the meetings or parts thereof if the chair decides to hold a closed session (art. 6 (11) ROP of the RAC, SEAC and Forum, art. 6 (12) ROP for MSC). In such cases and on the grounds of confidentiality, access to documents is limited or excluded (art. 6 (12) ROP for RAC, SEAC and Forum, art. 6 (13) ROP for MSC). NGO representatives also take part in the Partner Expert Groups (PEGs). Numerous PEGs are involved in the preparation of a variety of Guidance documents which should “facilitate the implementation of REACH by describing good practice on how to fulfil the obligations”30 (Recital 31 REACH).31 Besides, ASO representatives may also cooperate in numerous further events and groups, such as HelpNet, Exchange Network on Exposure Scenarios (ENES), Accredited Stakeholder Workshop, NGO-ECHA discussion platform, Communicators’ Network or Stakeholder Day. Moreover, stakeholders may also participate as observers in Competent Authorities for REACH and CLP (CARACAL) meetings (art. 2 lit. e) ROP for CARACAL32).33 4. Consultation in Decision-making Processes REACH was enacted to address the lack of knowledge concerning substance properties (“toxic ignorance”) and besides its own targets, the appropriate management of substances (“adequate control” of substance related risks). The following sections seek to give an overview of the single decision-making processes, their sub-decisions and their links, which form the context in which participation takes place. To this end, the description of the REACH processes is followed by a table summarising the results.

29 Rules of the Forum for Exchange of Information on Enforcement, Helsinki, 19 June 2013, MB/31/2013 final. 30 See: http://echa.europa.eu/guidance-documents/guidance-on-reach. 31 Although these documents are not legally binding in a strict sense, they have a quasilegal effect since they represent the common interpretation of the REACH text which creates legitimate expectations and demands justification for any deviation. See Bergkamp, para 2.19 et seq. Moreover, since diverse experts in the respective field of expertise agreed on them a idealistic conviction must be attested. Röhl, para 77 et. seq. 32 Revised Rules of Procedure for the Competent Authorities for REACH and CLP (CARACAL), Brussels, 09 November 2012, CA/03/2009-Rev. 1. 33 CARACAL is a European Commission expert group, which “provide[s] advice to the Commission on policy issues and to the Commission and the ECHA on the implementation and the functioning of the REACH and CLP Regulations in their respective areas of responsibility” (art. 1 ROP for CARACAL).

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a) Registration First, substances which are marketed in the EU need to be registered with the ECHA (art. 6 REACH).34 The registration comprises of a dossier describing the inherent properties of a substance (art. 10 and 14 REACH).35 The dossier is checked by the ECHA with regard to its completeness (art. 20 (2) REACH) and published online on the website (art. 77 (2) lit. e) REACH). In practice, this is done automatically by the REACH IT system.36 However, confidential data will not be published (art. 119 REACH).37 b) Dossier and Substance Evaluation The registration dossiers are subject to dossier and substance evaluation. During ‘dossier evaluation’, the ECHA checks submitted dossiers’ compliance with REACH (Title VI Chapter 1 REACH), which aims at evaluating the appropriateness and the quality of submitted data. In particular, the ECHA examines the appropriateness of submitted testing proposals (art. 40 (1) REACH) and compiles a draft decision (art. 40 (3) REACH). If a testing proposal includes vertebrate animal testing, the draft takes into account comments submitted via website consultation. For that purpose information is published on the website and interested parties may submit their comments within 45 days (art. 40 (2) REACH). The comments and the responses of the ECHA are published on the website.38 In addition, if Member States (MS) wish to amend the draft, the ECHA modifies its decision by taking into account the outcomes of the MSC meeting (art. 51 (6) REACH). Moreover, the Agency examines if the dossier as a whole complies with legal requirements

34 Special rules apply to the so-called phase-in substances with regard to information obligations (art. 12 REACH) and transitional provisions (art. 23 REACH). Those are substances which were already in use in the internal market before REACH was enacted (see for details art. 3 (20) REACH). The special rules with regard to phase-in substances will not be reflected in this contribution. 35 The level of detail of the registration dossier depends on the import or manufacture quantity of a substance. Registration is required for substances and substances in mixtures of quantities of one tonnes or more per year (art. 6 (1) REACH) and comprises of a technical dossier which contains study summaries and robust study summaries with regard to “all physicochemical, toxicological and eco-toxicological information” (art. 10 (a) (vi) and (vii) REACH). If substance quantity is at 10 tonnes or more per year it contains a more detailed chemical safety report (art. 14 REACH). 36 However, the system does only check if the requested fields are filled, but not if the data is meaningful. Schaible/Buonsante, p. 5. See also PWC, p. 35. 37 There is a catalogue of data which must be published (art. 119 (1) REACH) and data which may be claimed to be confidential (art. 119 (2) REACH). The ECHA evaluates confidentiality of the data. However, confidentiality of data is one of the most controversial subjects in European chemicals regulation. 38 When deleting confidential information. ECHA (2011c), p. 11.

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(art. 41 (1) REACH).39 Decisions under compliance check are settled with the MSC (art. 41 (3), art. 51 (6) REACH and art. 41 (4) REACH) and no consultation is provided for.40 ‘Substance evaluation’ aims at the overall risks of a substance (Title VI Chapter 2 REACH). On a risk-based approach,41 substances are prioritised (art. 44 (1) REACH) and listed in a Community rolling action plan (CoRAP) (art. 44 (2) REACH), which lists a number of substances to be evaluated each year. The CoRAP is adopted involving the MSC and published on the website of the ECHA. Although participation is not stipulated explicitly in REACH, interested parties may indirectly influence the decision on substance evaluation, since risk concerns may be based “on the basis of any other appropriate source” (art. 44 (2) second sentence REACH).42 c) Management of Problematic Substances Depending on the hazard potential of a substance, REACH allows the setting of authorisation obligations or the enactment of restrictions. Authorisation obligations are established for ‘substances of very high concern’43 (SVHC) (art. 59 et seq. REACH). They are included in Annex XIV REACH with the effect that specific uses of a substance are subject to a decision of ECHA.44 If a substance includes an unacceptable risk to health and the environment, REACH provides a more serious intervention in form of a restriction45 (art. 69 et seq. REACH).46 Substances subject to restriction are included in Annex XVII REACH.47 39

For each tonnage band, at least 5 % of the submitted registration dossiers shall undergo a compliance check (art. 41 (5) REACH). However, due to lack of participation, it seems the website only comprises of 28 response documents (out of 741 consultation processes). 40 For phase-in substances a list of pre-registered substances should have been made available on the ECHA website (art. 28 (4) REACH) and participation in an electronic form should been carried out (art. 41 (6) REACH). However, there were specific shortcomings with regard to information on the process. See Schaible/Buonsante, p. 31. 41 See art. 44 (2) second sentence REACH: “Substances shall be included if there are grounds for considering (either on the basis of a dossier evaluation carried out by the Agency or on the basis of any other appropriate source, including information in the registration dossier) that a given substance constitutes a risk to human health or the environment”. 42 An older version of the Guidance on this issue stated: “In addition third parties (for example scientists, other institutions, NGOs) may have a role in providing additional information to be used for evaluation activities”, ECHA (2007a), p. 17. 43 Those are substances that are carcinogenic, mutagenic or toxic for reproduction, persistent bio-accumulating and toxic substance (PBT), very persistent and very bio-accumulating substances (vPvB), as well as substances of equivalent concern, such as endocrine disrupting substances (see art. 57 REACH). 44 There are however, specific transitional periods (art. 58 (1) lit. c) REACH), as well as other exemptions (see art. 56 REACH). 45 Restriction means “any condition for or prohibition of the manufacture, use or placing on the market” (art. 3 (31) REACH).

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aa) Initial Decision Basis Both decision making processes, are aimed at authorisation or restriction, are based on a proposal according to Annex XV (Annex XV dossier),48 which is set up by MSCAs or ECHA (art. 59 (2) and (3); 69 (4) and 69 (1) REACH).49 During the preparation of Annex XV, a proposal as to third party participation is optional.50 At a minimum, the ECHA website lists its intentions in the case of a proposal, intended to be drafted by an administrative unit.51 The website also comprises of contact details of specific administrative units who are involved in the compiling of a proposal. There are nonetheless, no uniform rules with regard to how such a third party contribution is acquired or taken into account. The unit compiling a proposal is solely advised to carry out consultations and to include a report on such consultations.52 Submitted Annex XV dossiers are published on the website of the ECHA. bb) Authorisation Procedure The decision procedure to establish authorisation obligations comprises of three steps, which aim at identification of SVHC, prioritising its inclusion into Annex XIV and effective inclusion into Annex XIV. On basis of Annex XV dossiers, a list of candidates for eventual inclusion in Annex XIV – the so-called “candidate list” – is established (art. 59 (1) REACH). The decision on candidates is influenced by comments of interested parties made via the website of the ECHA (art. 59 (4) REACH). Consultation takes place twice a year for 45 days.53 If

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Restrictions are set up when taking into account risk management measures where there is still an “unacceptable risk to human health or the environment, arising from the manufacture, use or placing on the market of substances, which needs to be addressed on a Community-wide basis”, art. 68 (1) REACH. 47 Besides, authorisation obligations, granted authorisations and restrictions are open to a review process (art. 58 (8), 61, 68 REACH). The review processes will not be reflected in this contribution. 48 The contents of such an Annex XV proposal vary according to their aim i. e. as to setting up authorisation obligations or as to restrictions; the processes are nevertheless nearly identical. 49 Proposals are primarily based on submitted registration data. However, secondary sources of information are also admissible if they are reliable. ECHA (2014), p. 7 and ECHA (2007b), p. 17. 50 ECHA (2008), p. 15 and ECHA (2007b), p. 18. 51 “Registry of current SVHC intentions” aiming at authorisation obligations. “Registry of current restriction intentions” aiming at restrictions (art. 69 (5) REACH). 52 ECHA (2008), p. 39 and ECHA (2007b), p. 80. 53 Information may be submitted on the “identity of the substance and intrinsic properties relevant for the identification (unless identification is based on harmonised classification and labelling and cannot be challenged in this context). Additionally, information on uses, exposure potential, and alternatives”. See: http://echa.europa.eu/addressing-chemicals-of-concern/ authorisation/public-consultation-in-the-authorisation-process. Outcomes of the consultation

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comments have been made, the dossier and the submitted comments are considered by the MSC (art. 59 (7) REACH), which unanimously decides on the inclusion of a substance onto the candidate list (art. 59 (8) REACH).54 The up-to-date candidate list is available on the ECHA website thereafter (art. 59 (10) REACH). The ECHA recommends priority candidates for inclusion into Annex XIV (art. 58 (3) REACH). The recommendation draft takes into account the opinion of the MSC (art. 58 (3) REACH) and comments submitted during the making of the candidate list.55 Additionally, the draft recommendation is published on the website and is itself subject to a consultation procedure (art. 58 (4) REACH). The consultation procedure takes place once a year and within 3 months comments may be submitted.56 The recommendations of the ECHA takes into account all comments received.57 cc) Restriction Procedure As for the authorisation of the decision concerning restrictions, this procedure is based on the Annex XV dossier. The dossier is published on the website of the ECHA and interested parties may submit comments within 6 months (art. 69 (6) REACH).58 The proposal and the views of interested parties are taken into account by the RAC (art. 70 REACH) and the SEAC (art. 71 (1) REACH), which are in charge of preparing the agency opinion. In contrast to the RAC opinion, the opinion of the SEAC is a draft and is published on the website of the ECHA anew and subject to comments of interested parties within 60 days (art. 71 (1) REACH). After adoption of the final opinions, these are sent to the European Commission and published on the website of the ECHA (art. 72 (2) REACH).59 process should be compiled in a document setting out the comments made and the reply by the ECHA, ECHA (2013), p. 4. 54 If the MSC reach no unanimous agreement, the decision is settled in a comitology procedure (art. 59 (9) and 133 (3) REACH). 55 Those comments shall aim at “confirmation on uses and volumes used, views on the transitional arrangements and possible exemptions.” The ECHA website states: „Other types of comments, particularly those on uses, exposure potential and alternatives can be made and will be taken into account at the next stage in the process. This is because while they are not directly relevant for the identification of the SVHC, they are important for the prioritisation for inclusion in the Authorisation List step“, see: http://echa.europa.eu/addressing-chemicals-ofconcern/authorisation/public-consultation-in-the-authorisation-process. 56 See: http://echa.europa.eu/addressing-chemicals-of-concern/authorisation/public-consulta tion-in-the-authorisation-process. 57 The European Commission receives the recommendations (art. 58 (4) REACH) and decides in a comitology procedure (art. 58 (1) and 133 (4) REACH). 58 Interested parties may submit comments on suggested restrictions (art. 69 (6) lit. a) REACH) and/or provide “a socio-economic analysis or information, which can contribute to one of the suggested restrictions, examining the advantages and drawbacks of the proposed restrictions […]” (art. 69 (6) lit. b) REACH). 59 The final decision is settled in a comitology procedure according to art. 133 (4) REACH).

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REACHprocedure

Purpose

Form

Dossier evaluation

Alternative testing Website-Conmethods sultation (if vertebrate animal testing is involved)

Actors involved

Conditions

General public and organised public

Notification on the website and via newsletter 45 days period Background information in the databases Response of the ECHA

Potential MSC ASO observ- Same notification and meeting ers information as other MSC members possible exclusion due to confidentiality Substance evaluation

CoRAP

Annex XV dossier

Comments on Optional par- General pubAnnex XV dossier ticipation with lic and orpreparation the MSCAs ganised public

MSCA contact detail notified on the ECHA-website Specific conditions are left to the discretion of the MSCA

Authorisation procedure

Candidate list (identity and intrinsic properties, information on uses, exposure potential and alternatives)

Notification on the website and via newsletter 45 days period (twice a year) Annex XV proposal published on the website

Recommendation on priority candidates

MSC meeting

ASO observ- Same notification and ers information as other MSC members possible exclusion due to confidentiality

Website consultation

General public and organised public

MSC meeting

ASO observ- Same notification and ers information as other MSC members possible exclusion due to confidentiality

MSC meeting

ASO observ- Same notification and ers information as other MSC members

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Tabelle 1 (Continued) REACHprocedure

Purpose

Form

Actors involved

for inclusion in Annex XIV

Restriction procedure

Comments on suggested restrictions, socioeconomic analysis, or information which can contribute to one

Comments on SEAC draft opinion

Conditions possible exclusion due to confidentiality

Website consultation

General public and organised public

Notification on the website and via newsletter 3 months (once a year) Recommendation draft

Website consultation

General public and organised public

Notification on the website and via newsletter 6 months Annex XV proposal published on the website

RAC meeting

ASO observ- Same notification and ers information as other MSC members possible exclusion due to confidentiality

SEAC meeting

ASO observ- Same notification and ers information as other MSC members possible exclusion due to confidentiality

Website consultation

General public and organised public

Notification on the website and via newsletter 60 days SEAC draft opinion

IV. NGOs’ Perception of Participation Under REACH The subsequent sections reflect preliminary results of telephone interviews carried out with European NGOs, which bring environmental interests into the decision-making processes. The NGOs interviewed consist of: the European Environmental Bureau (EEB), the Health and Environmental Alliance (HEAL), ClientEarth

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and Greenpeace Europe.60 In the following section IV.1., the focus of the analysis is broadened to capture the wider picture of participatory activities of NGOs. It serves as to provide deeper understanding of the problems which arise when NGOs engage in participation under REACH by describing their working routines, specific problems thereof, and problems which they face while engaging in European chemicals management. Moreover, NGOs experiences are used to address the systems performance in giving environmental interest a voice in two comparable processes foreseen in REACH: the process of setting up authorisation requirements and the process of setting up restrictions (section IV.2.).61 This section seeks to analyse the fulfilment of the participation principles set out by art. 8 AC. 1. Practices and Struggles of NGOs in General NGOs are overall quite satisfied with participation possibilities offered by the ECHA. In comparison to participation under the former chemical regulation, transparency and the possibility of submitting their views into the decision-making processes have strongly improved. Since the ECHA took up its work, it continuously responded to concerns of NGOs and sought to match their needs. However, specific problems still remain with regard to publication practice and the possibilities to take part.62 As described above, there are diverse possibilities for NGOs to participate, whether in the form of continuous cooperation (e. g. PEGs, workshops, events etc.), which do not relate to single substance management, or in the form of consultations during single substance-related decision-making processes (e. g. evaluations, authorisations or restrictions). Since such processes are also parted into several steps aiming at answering in more detail the questions at hand, the number of possibilities to submit comments is heightened considerably. It exceeds the capacity of the NGOs with regard to their resources and results in cooperation between them even beyond the boundaries of their specific interests.63 The issue with regard to the function attributed to the NGOs also needs to be addressed i. e. multiplying and facilitating dissemination of information to their mem60

Moreover, the outcome of the interview with the European Trade Union Confederation (ETUC) is also reflected. While the ETUC works mainly on workers’ health issues, in some cases they also bring into the process, arguments stemming from environmental interests groups. This may be the case when health and environment concerns are based on the same reasoning. Moreover, in some cases representatives of the named organisation rotate when attending the Committee meetings due to limited resources and shared information on the outcomes of the meetings. 61 As described in section III.3. 62 Moreover, the possibilities to effectively influence the decisions were questioned, too. 63 For example, the environmental NGOs rotate their attendance at Committee meetings and sometimes the rotation order comprises of representatives of social or health NGOs, too.

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bers, providing feedback with regard to the NGOs’ needs and on scientific and technical questions relating to the regulation of chemical substances. In providing a comment in consultation procedures, the person working on European level has to firstly track the process in order to become familiar with the current situation. Although, the ECHA website collects all the information, it is burdensome to get an overview about a single substance or specific groups of one type of substance. The website structure follows the logic of administrative processes, which parts information as to a substance on different pages and not in a substance-oriented logic, which would on one page show what has been done and the current status of the substance. Moreover, one has to review a considerable amount of highly technical and scientific documents, which add up to several hundred pages. Registration dossiers comprise of a high amount of technical and scientific information which needs to be viewed, processed and circulated to the member organisations, since they may provide feedback for the consultation phase in form of alternative viewpoints or additional information. In addition, the information available on the website is often poorly structured, lacks summary, and in parts is not comprehensive.64 Before a final comment is ready to be submitted during consultations, not only the information available on the website needs to be processed, but also in some cases, the information submitted by the NGOs’ members to the representative in charge too. Given that on the European level, only approximately a dozen persons work on the questions raised in chemical regulation from the side of the environment and health orientated NGOs, the workload considerably exceeds their capabilities. The situation is almost the same with regard to the cooperation possibilities. Since there are numerous PEGs, workshops and other events, the representatives of NGOs are rarely able to provide input, but need to focus on specific regulatory questions or substance-related questions. With regard to the committee meetings, it may depend on the chairman as to whether or not observers of NGOs are allowed to speak and to comment on the discussion.65 Since the ROPs do not state clearly as to the role of observers, some chairmen have already interpreted the term “observers” very strictly, in their own capacity. Moreover, the chairman has the possibility to carry out the meeting or parts thereof in a closed session. The ROPs do not state criteria for closed sessions and do not require 64

Confidential data is not marked as such in the registration dossier. The dossier fields are blank with the effect that the reader does not know if the information was provided or not. Some NGO criticised that the ECHA is overprotective with regard to the data provided by the registrants, leading to the reproach of being more “client-oriented” instead of equally treating all the stakeholders. Moreover, the documents are held in English, which require certain mastery of the representative and also of the national member organisations’ stakeholders. 65 If observers wish to interfere in the discussions, they need to indicate this before the meeting and the chair decides about the length of the interference (see no. 9 Code of Conduct for Observers at ECHA meetings, ED/62/2008, Helsinki 9 October 2008).

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the committee to provide a reason thereof. In practice, closed sessions are not announced in the invitation of the meetings either. As a result, observers do not know if they will be able to comment on the issues discussed or if they even will be able to follow the discussions in the committee meetings and to disseminate this information to their members. This may impact the motivation to attend the meetings considerably as they must justify their actions to their members not only behind the background of scarce resources, but also with regard to other work they could have been doing for their organisation. Although it is not easy for the Brussels-based umbrella NGOs to attend the Committee and Forum meetings, there are specific reimbursement rules aiming at the compensation of travel and accommodation costs.66 For the committee workshops however, those rules do not apply, as well as for other events or workshops outside the scope of the committee or Forum work. 2. Authorisation and Restriction Procedures Behind the Background of Art. 8 AC The following section analyses the fulfilment of the AC of the specific participation processes carried out during the making of authorisation requirements and restrictions. With regard to the setting of authorisation requirements and restrictions (art. 57 et seq. REACH and art. 69 et seq. REACH) of harmful substances, art. 8 AC applies67 since those procedures lead to amendments of Annexes of REACH following a comitology procedure (see art. 133 (4) REACH) and therefore result in legally binding rules that apply equally to all similarly situated persons.68 Moreover, such decisions are significant to the environment, since they are based on assessments of environmental risks of substances.69 Art. 8 AC only sets soft obligations.70 The provision demands that the parties solely apply best efforts in letting the public participate in the preparation of normative

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See no. 5 of the Guide for the Reimbursement of Travel and Accommodation Expenses and Payment of Subsistence Allowance, Helsinki, 29 September 2009, MB/59/2009 final. 67 Despite the fact, that authorisation requirements and restrictions effectively anticipate specific permit conditions or refusals of a use of a substance in general, art. 6 AC applies only to particular permits or license procedures for example during application for authorisation procedures (art. 56 (1) lit. a) and 60 et seq. REACH). 68 UNECE (2014), p. 182. 69 The Aarhus Convention Implementation Guide refers to “environmental significance” of art. 6 AC. UNECE (2014), p. 183. First, a mere likelihood of environmental significance triggers the provision. Second, significance is dependent on size, location and possible effects of an activity. UNECE (2014), p. 132 et seq. 70 It demands no results, but effort. See UNECE (2014), p. 181.

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instruments by public authorities.71 It should take place at an ‘early stage, while opinions are still open’ to effectively influence the decisions by information provided from the public. In fact, for restriction and authorisation procedures there are two preparation stages, since before the preparation of the final decision prepared by the ECHA the initial information basis is set up by Annex XV dossiers, drafted by MS or the ECHA. However, ‘at an early stage’ does not mean that public authorities may not already have an opinion, but the decision-making process must still be in an information gathering and processing stage and open to changes.72 On the basis of Annex XV dossiers, the main public consultation process managed by ECHA takes place, which aims at consolidating the information already gathered by the authority in charge of Annex XV dossiers, which may be a national authority. At this point in time options are effectively still open, since the onus is on the committees to draft opinions on the basis of information acquired. Although participation is legally foreseen for both preparatory stages, most interviewees were in any case unaware of the existence of influencing possibilities during the making of Annex XV proposals. MS authorities, who in general are in charge of drafting Annex XV proposals, apply participation differently at this stage, since no uniform rules have been set up. However, participation could admittedly, be of a more cooperative nature, which would offer the possibility to MS authorities to enter into a discourse with national NGOs. The interviews show that this potential is not fully exploited. Furthermore, art. 8 AC demands “effective public participation”, which may be provided by the public authority under three basic conditions: sufficient time frames (art. 8 lit. a) AC), effective notifications (art. 8 lit. b) AC), and opportunities for commenting (art. 8 lit. c) AC).73 The interviewees criticised the fact that time frames for public consultation carried out via the website of the ECHA are sometimes too short. Depending on the issue, the exchange of views between umbrella and member organisations may require more time than already provided. Effectiveness also focuses on the notification’s aim of saving costs in terms of time and money.74 Therefore, notifications may combine easily legible information and more detailed information, and may comprise references to one another to achieve the widest penetration of the matter possible.75 Annex XV dossiers published on the website of the ECHA, comprise of several hundred pages written in a very tech71 And before such drafts are passed to the legislature. Moreover, in comparison to art. 6 AC; only a limited set of basic principles applies to participation in preparation of normative instruments. UNECE (2014). p. 181 et seq. 72 UNECE (2014), p. 144. In addition, for the Annex XV proposal a different national authority might as well be in charge than the authority preparing the decision: the ECHA. 73 The AC implementation guide lists four factors which may be regarded: the person giving the opinion should have the opportunity to form a well-based opinion; the opinion must be able to be taken into consideration in the drafting; the size of the draft; and the type of organisation giving the opinion. UNECE (2014), p. 183. 74 UNECE (2014), p. 183. 75 UNECE (2014), p. 136.

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nical language. Despite the fact that it contains summaries, the interviewees criticised that such dossiers are written using passive language and are structured complexly and that they needed several hours to view the information. The interviewees also reported that in chemical regulation, such notice should also help to raise awareness with regard to a specific issue associated to a specific substance. This proactive or individual approach could help specific organisations to better prepare and use their opportunities to voice their opinion in the participation process. However, according to the interviewees, this does not seem to be the case as regards Annex XV dossiers. This also has a direct impact on the opportunity for commenting on such processes. Art. 8 lit. c) AC foresees two possibilities for commenting; either directly or through representative consultative bodies, such as expert bodies which must be representative with regard to a part of the civil public or the public at large.76 Under the restriction and authorisation procedures, both include the possibility to contribute comments. With regard to the website consultation, the possibilities to submit a comment are quite satisfying.77 Moreover, accredited stakeholder organisation representatives are entitled to observe the Committee meetings as well. However, there are specific shortcomings with regard to such meetings which give reason to question, whether observing such meetings would solely aim at transparency and not as to possibilities of influencing decisions.78 In any case, the process would benefit from a clear statement on the role of NGO-observers, as well as a pragmatic implementation of such a role in the ROPs. Finally, according to art. 8 AC, the outcome of participation processes must be taken into account ‘as far as possible’.79 Written reasoning as well as indications on how the comments are taken into account should be provided by the authority.80 However, contrary to art. 8 AC the Guidance only demands to give a full picture in terms of a more general or summarised overview of the outcomes of the participation process and on whether participation was carried out.81 Under the restriction and au76

UNECE (2014), p. 184. Moreover, such authorities may implement measures to assess how representative-like such bodies are. The institution of accredited stakeholders represents such a measure. UNECE (2014), p. 121. 77 This statement only relates to the possibilities given with the website and does not reflect the issues relating to the time frames which in cases may be too short. 78 Transparency is not forthcoming as there is a considerable amount of closed sessions. 79 The wording ‘as far as possible’ reflects that taking into account comments under art. 8 AC might be less rigid as compared to art. 6 or art. 7 AC. UNECE (2014), p. 156, as well as, UNECE (2014), p. 185. 80 Legislative rules or legal standards would normally give insights into how this should be done. See UNECE (2014), p. 156. However, on European level, there is currently no general administrative law, but specific principles arise from art. 298 (1) TFEU as regards open, efficient and independent administration, art. 15 (3) TFEU as regards transparent, as well as art. 41 Charter of Fundamental Right of the European Union (2010/C 83/02), as operationalised in, for example the Code of Good Administrative Behaviour (OJ L 267, 20. 10. 2000). 81 UNECE (2014), p. 185.

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thorisation process, responses to comments are in general very detailed, however, with regard to the valuation of comments made in course of the committee meetings, the interviewees criticised that the committees do not always reflect in detail the comments given and how this affected the final opinion.

V. Conclusion REACH introduces a very sophisticated, but also complex decision-making system regarding the management of chemical substances in the EU. At specific points in the decision-making process, the system contains participation in order to take into account information provided by the public. The system itself is not solely designed to allow for effective participation. At first, it was introduced to effectively evaluate substance properties and come to sound decisions with regard to substance risk management. Both procedures – authorisation and restriction – include complex and diverse questions, which need to be answered in a reasonable period. Besides, especially with regard to its aim to overcome toxic ignorance, the relatively ‘young’ system is still in its development stage. To this end, it is designed to be a learning-process and adaptable system with regard to the questions involved as to substances in their variety of effects and forms. This is especially the case for specific substances, such as endocrine disrupters or substances in nano-scale. From this viewpoint, REACH represents merely a new beginning and the information exchange and processing systems introduced, will most likely need to be developed further. By now, REACH already represents a substantial enhancement with regard to the involvement of the public. With regard to the decision-making processes aiming at setting authorisation requirements or restrictions, the soft provisions set by art. 8 AC are implemented by the ECHA. In some places, the ECHA goes even further in implementation, for example with regard to participation possibilities even before the preparation of the final decisions. However, this should not detract from the fact that participation and involvement in this specific area of decision-making is still very demanding for stakeholders and only feasible if enough resources are available. The public needs specific knowledge to fully understand the processes and the issues discussed to get involved. To this end, mostly experts and expert organisations are effectively involved and the civil society in terms of lay persons is still neither an active contributor nor an addressee. As a result, transparency is still not being fully achieved. As described in this contribution, even the experts and expert organisations such as NGOs which dedicate a considerable part of their work to the questions of substance management, have to also dedicate significant resources in terms of time and money to these questions. Most of such resources in this regard, are related to substantial work as an information multiplier, such as processing data for their member organisations and giving further support on technical questions. Since information is not sufficiently processed by the ECHA before it is published, it is up to the

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NGO representatives to enhance the situation of dispersing information and this has an impact on the meeting of deadlines for comments and ultimately on participation itself. A solution to the situation might be achieved with a more pro-active inclusion of the NGOs in terms of responding directly and with short notice to their informational needs. In addition, the mass of information gathered by the ECHA as to substances and their management could be structured in a more ‘digestible’ way. However, both these developments have visibly fostered by the ECHA since the beginning of 2013 by introducing specific communication channels to NGOs, as well as investigating more digestible information structures, such as the substance brief profiles.82 With regard to the implementation of the provisions of the AC, the interplay between the single decision-making steps under REACH should be focussed. It should be borne in mind, that REACH divides a single decision aiming at the sound risk management of substances into several steps.83 The diverse steps of such a decision-making process and the different questions involved should be managed with the aim to fulfil the basic idea of the AC i. e.; the effective involvement of civil society in decision-making processes significant for the human health and the environment. If the decision-making process itself is very complex, the burdens for state administrations should be larger with regard to their supportive task of aiming at effective participation. References Arbter, Kerstin/Handler, Martina/Purker, Elisabeth/Tappeiner, Georg/Trattnigg, Rita: Das Handbuch Öffentlichkeitsbeteiligung – Die Zukunft gemeinsam gestalten, 2005. Bergkamp, Lucas: The European Union REACH Regulation for Chemicals: Law and Practice, 2013. ECHA (2007a): Guidance on Dossier and Substance Evaluation. European Chemicals Agency. Withdrawn and replaced by information, available at: http://echa.europa.eu/regulations/ reach/evaluation and http://echa.europa.eu/about-us/the-way-we-work/procedures-and-poli cies/public-procedures (last visited in August 2014). – (2007b): Guidance for the preparation of an Annex XV dossier for restrictions. European Chemicals Agency, available at: http://echa.europa.eu/documents/10162/13641/restriction_ en.pdf (last visited in August 2014). – (2008): Guidance on inclusion of substances in Annex XIV. European Chemicals Agency. Withdrawn and replaced by information under: http://echa.europa.eu/web/guest/address ing-chemicals-of-concern/authorisation (last visited in August 2014). – (2011a): Revised eligibility criteria for ECHA’s Accredited Stakeholder Organisations. Adopted by the Management Board on 21 June 2011 (MB/34/2011 final), available at: 82

http://echa.europa.eu/news-and-events/events/event-details/-/journal_content/56_IN STANCE_DR2i/title/workshop-on-echa-dissemination-website-substance-brief-profiles. 83 To recall the two basic questions of section III.3: What are the properties of a substance? How should the substance be managed?

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http://echa.europa.eu/documents/10162/13559/mb_34_2011_revised_criteria_of_accredited_ sh_en.pdf (last visited in August 2014). – (2011b): ECHA’s approach to engagement with its Accredited Stakeholder Organisations. Endorsed by the Management Board on 16 December 2011 (MB/69/2011), available at: http://echa.europa.eu/documents/10162/13559/echas_approach_to_engagement_with_accred ited_stakeholder_organisations_en.pdf (last visited in August 2014). – (2011c): Procedure on Dossier Evaluation. Authorised for publication on 28 March 2011, Geert Dancet – Executive Director, available at: http://echa.europa.eu/documents/10162/ 17207/procedure_dossier_evaluation_20110329_en.pdf (last visited in August 2014). – (2014): Guidance for the preparation of an Annex XV dossier on the identification of substances of very high concern. Version 2.0. European Chemicals Agency, 2014, available at: http://echa.europa.eu/documents/10162/13638/svhc_en.pdf (last visited in August 2014). Führ, Martin: Einführung in die REACH-Mechanismen, in. Führ, Martin (ed.): Praxishandbuch REACH, 2011, chapter 1, p. 1 – 33. Groß, Matthias: Handbuch Umweltsoziologie, 2011. Hermes, Georg: § 39 Schlichtes Verwaltungshandeln, in: Hoffmann-Riem, Wolfgang/SchmidtAßmann, Eberhard/Voßkuhle, Andreas (eds.): Grundlagen des Verwaltungsrechts, vol. 2, 2008, p. 1405 – 1458. Kaase, Max/Marsh, Alan: Political Action. A Theoretical Perspective, in: Barnes, Samuel H./ Kaase, Max/Allerback, Klaus R./Farah, Barbara/Heunks, Felix/Inglehart, Ronald M./Jennings, Kent/Klingemann, Hans D./Marsh, Allan/Rosemayr, Leopold (eds.): Political Action. Mass Participation in Five Western Democracies, 1979, chapter 2, p. 27 – 56. Kersting, Norbert: Politische Beteiligung – Einführung in dialogorientierte Instrumente politischer und gesellschaftlicher Partizipation, 2008. Newig, Jens: Partizipation und neue Formen der Governance, in: Groß, Matthias (ed.): Handbuch Umweltsoziologie. Wiesbaden. 2011, p. 485 – 502. Peters, Birgit: Towards the Europeanization of participation? Reflecting on the functions and beneficiaries of participation in EU environmental law, in: Fraenkel-Haeberle, Christina/ Sommermann, Karl-Peter (eds.): Federalism, Alternative Forms of Democracy and Better Governance, 2015 (forthcoming), available at: SSRN: http://ssrn.com/abstract=2422378. PWC, Final Report on the Review of the European Chemicals Agency – Main Report. 14 March 2012, available at: http://ec.europa.eu/enterprise/dg/files/evaluation/ 201203-final-report-echa_en.pdf (last visited in August 2014). Röhl, Hans C.: § 30 Ausgewählte Verwaltungsverfahren, in: Hoffmann-Riem, Wolfgang/ Schmidt-Aßmann, Eberhard/Voßkuhle, Andreas (eds.): Grundlagen des Verwaltungsrechts. vol. 2, 2008, p. 689 – 750. Rossen-Stadtfeld, Helge: § 29 Beteiligung, Partizipation und Öffentlichkeit in: HoffmannRiem, Wolfgang/Schmidt-Aßmann, Eberhard/Voßkuhle, Andreas (eds.): Grundlagen des Verwaltungsrechts. vol. 2, 2008, p. 625 – 688. Schaible, Chrisitan/Buonsante, Vito: Identifying the bottlenecks in REACH implementation – The role of ECHA in EACH’s failing implementation. Joint study of the European Environ-

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mental Bureau (EEB) and ClientEarth, 2012, available at: http://www.eeb.org/EEB/?Link ServID=53B19853-5056-B741-DB6B33B4D1318340 (last visited in August 2014). Schmidt-Aßmann, Eberhard: § 27 Der Verfahrensgedanke im deutschen und europäischen Verwaltungsrecht, in: Hoffmann-Riem, Wolfgang/Schmidt-Aßmann, Eberhard/Voßkuhle, Andreas (eds.): Grundlagen des Verwaltungsrechts. vol. 2, 2008, p. 461 – 522. Schneider, Jens-Peter: § 28 Strukturen und Typen von Verwaltungsverfahren, in: HoffmannRiem, Wolfgang/Schmidt-Aßmann, Eberhard/Voßkuhle, Andreas (eds.): Grundlagen des Verwaltungsrechts. vol. 2, 2008, p. 523 – 624. Stokes, Ellen/Vaughan, Steve: Great Expectations: Reviewing 50 Years of Chemicals Legislation in the EU, in: Journal of Economic Literature, vol. 25, 2013, p. 411 – 435. UNECE: The Aarhus Convention: An Implementation Guide, 2nd ed. 2014.

Part III Participation Through Access to Justice – Conditions and Concepts of Judiciary Participation

Access to Justice – the Main Challenge for Implementing the Aarhus Convention By Eva Julia Lohse

I. Introduction Access to justice in environmental matters constitutes the “third pillar” of the Aarhus Convention (AC). Its purpose is to encourage the enforcement of informational and participatory rights as provided by the AC (art. 9 (1) and 9 (2) AC), but also more generally, adherement to provisions regarding the protection of the environment (art. 9 (3) AC). Access to the courts in the AC is a procedural right, as there are no material requirements for the protection of the environment in the convention. As with participation in administrative procedures, it is disputable, whether this genuine procedural right is at the same time meant to be a human right1 (II. 1.). According to recitals 7 and 8, the AC sees access to justice for the public (concerned) as an important element for the enforcement of the right of every person to a healthy environment; more objectively and from the perspective of the environment it can also be seen as an important instrument to improve the enforcement of environmental provisions2 (II. 2.). One might wonder whether standing before courts and participation are directly linked, i. e., whether access to the courts and asserting a breach of (environmental) law is a form of participation. Mostly, the discussion on participation is focused on administrative and legislative decision-making. In these situations, participation will occur before a decision has been taken in order to influence the outcome of the decision. This kind of influence cannot be accomplished by court actions. Yet, the public concerned can make themselves heard in the course of decision-making and thereby participate in the review of administrative (and sometimes even legislative) decisions. Even if courts need to decide on the grounds of the pertinent legal provisions, the parties to a dispute can present their interpretation of legal provisions and their knowledge about technical, factual, or social matters at stake. They do, of course, not 1

See contributions in this volume: Public Interest to Environmental Protection and Indigenous Peoples’ Rights: Procedural Rights to Participation and Substantive Guarantees (Federica Cittadino), p. 73; Participatory Democracy and the Global Approach in Environmental Legislation (Cristina Fraenkel-Haeberle), p. 31; The Aarhus Convention between Protection of Human Rights and Protection of the Environment (Claudia Sartoretti), p. 43. 2 See inter alia: Führ/Schenten/Schulze/Schütte, p. 1043.

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participate in the decision-making, the judgment, as such, which can only be performed by a court. Still, they participate to participate, to make their voice heard, and to contribute indirectly to a better protection of the environment in administrative decision-making. This explains, why associations are attributed a special role by the AC as compared to individuals: they have better personal, scientific and sometimes financial resources3 and may therefore be better suited to make the voice of the environment heard in court proceedings. Simultaneously, art. 9 AC poses a great challenge in the implementation of the convention, not only to many continental legal systems (such as the German,4 Austrian,5 and even the Italian legal order, despite the latter not being rights based6). It is probably the greatest engine for changes in the overall procedural laws of the signatory states, possibly even for EU law, if some of the latest decisions by the Court of First Instance – on Regulation (EC) 1367/2006 for the implementation of the Aarhus Convention for EU bodies and access to the Court of Justice of the European Union (CJEU) – are taken into account7 (II. 2. and 3.). All contributors to this part of the book undertake to illustrate the amendments to existing laws and the implications and frictions with the overall system of procedural and administrative law against the background of some seminal decisions of the CJEU and the Aarhus Convention Compliance Committee (ACCC). Even though Italy has so far not been subject to infringement proceedings, preliminary rulings, or proceedings before the ACCC, Elena Fasoli correctly poses the question as to whether the existing law in Italy would stand such scrutiny. For all Parties, implementation poses the basic question as to which authority within a state (legislative or judicial power) should implement inter-/supranational law. The unwillingness of the legislators to adapt the positive law to inter-/supranational requirements or decisions by revising bodies may lead to a shift of powers. In consequence, questions of democratic legitimation of such implementing court decisions and of legal certainty arise, when implementation is effectuated by far-reaching decisions by the high courts8 (III.). 3 See Participation of Environmental Associations in the Context of Nature Conservation Law in Germany (Julian Zwicker/Franziska Sperfeld)in this volume, p. 117. More generally Lohse, Surprise? Surprise!, p. 249 and Führ/Schenten/Schulze/Schütte, p. 1042 on positive effects of claims brought forward by associations. 4 See contributions in this volume: The Effect of the Aarhus Convention’s Right to Access to the Courts in Germany (Bilun Müller), p. 199; The German Criteria for Access to Justice under the Scrutiny of the Aarhus Convention Compliance Committee and of the Court of Justice of the European Union: is there Room for Similar Proceedings against Italy? (Elena Fasoli), p. 185; Implementation and the Separation of Powers (Angela Schwerdtfeger), p. 169. 5 See the contribution by Giera, in this volume, p. 215. 6 See contribution by Fasoli, in this volume, p. 185. 7 Case T-396/09, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht/Commission of the European Union, ECLI:EU:T:2012:301. 8 See contribution by Schwerdtfeger, in this volume, p. 169.

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The binding decisions of the CJEU as well as the non-binding recommendations by the ACCC provide a good starting point for a harmonised implementation and interpretation of the AC, which should not only be taken into account by the parties to the respective dispute, but by all signatory states. It is therefore worth looking at these documents and also worth asking what will happen when the CJEU and the ACCC differ in their interpretation or in the assessment of the legal or factual situation in the same signatory state. Differing criteria, e. g., for the assessment of a correct and sufficient implementation by standing case-law, point to the direction that differing decisions are conceivable (IV.).

II. Points of Interest in the Context of Implementation 1. Public and Public Concerned Art. 9 (2) AC attributes the power to seek judicial review to the ‘public concerned’; art. 9 (3) AC refers to ‘members of the public’. Even though art. 2 (4) and (5) AC defines these terms and apparently distinguishes between individuals and organisations for the protection of the environment, the latter is deemed to have an interest by means of a legal fiction and therefore is treated in a privileged manner; this legal fiction becomes problematic in administrative and court procedures. Participation and court actions in the AC are by means of the recitals and the overall aim of the AC closely linked to the individual right to live in a healthy environment. The AC does not grant this (human) right, but it sees participation and access to the courts as a procedural means to reach a healthy environment. Having said that, this question has become a vital part of the judgment of the German Federal Administrative Court (FAC) following the decision of the CJEU in the Slovak Brown Bear Case9. The issue of whether the special treatment of environmental NGOs is still justifiable is moot, when the rights or interests impaired are solely of an individual nature, such as the right to health encompassed by action plans for air quality.10 It may make sense to treat NGOs differently, as NGOs seem to be more capable of playing an active role in controlling (objective) environmental decision-making or at least to assist individuals when enforcing their right to a healthy environment. To attribute standing (only) to environmental NGOs in cases, where no individual rights to a sound environment are at stake, might therefore be a possible compromise between an actio popularis and a system based too narrowly on exclusively individual rights.11 But does this also mean, that the signatory states need to double standing in environmental matters where individual rights are at stake – or 9 BVerwG Decision of 5. 9. 2013, Case 7 C 21/12; Case C-240/09, Lesoochranarske zuskupenie VLK, ECR, 2011, I-1255. 10 See Lau, p. 639 and contribution by Schwerdtfeger, in this volume, p. 169. 11 Lohse, Unrestricted Access, p. 100.

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can procedural laws exclude environmental NGOs from the ‘public concerned’ when the claim could also be made by an individual? Several contributors to this volume remind us that “trees do not have standing” and “fish cannot walk into court”12 – so in the implementation process it must be considered how rights can be granted to the environment as such – not only indirectly via subjective rights of individuals (health, life, right to a sound environment) – and as to who should be appointed to act on behalf of trees, fish, water, or birds. Ulrike Giera explores the Austrian institution of an ‘attorney for the environment’ (Ombudsmann) in this context, claiming that despite their rather independent representation of ‘the environment’ the institution of an ‘attorney’ cannot be said to implement art. 9 (2) and 9 (3) AC, as they are dependent governmental authorities and not the public (concerned). Bilun Müller emphasizes the distinctive criterion of ‘having an interest in environmental decision-making’ for the public concerned, which needs to be reflected in the procedural laws on standing, by introducing a system of wide access to the courts at least for environmental NGOs, and shows, how they German legislator tries to put different restrictions on environmental claims in order to maintain a hidden rights-based system.13 This might, however, contravene requirements of the AC and EU law in line with the right of access to the courts, which may not be made ineffective or extremely hard to obtain. 2. The Foundation of Access to the Courts and Standing – Individual or Collective, Material or Procedural Art. 9 (2) and art. 9 (3) AC are two completely different provisions. Yet, implementation measures as well as scholarly discussion have so far been mostly focused on art. 9 (2) AC, safeguarding participation as stipulated by art. 6 AC. According to Bilun Müller, this combination renders the AC a forceful tool for NGOs, as they are deemed to have interest and must therefore be enabled by national laws to control environmental decision-making. Art. 9 (3) AC, however, directed at judicial review against the yardstick of the pertinent substantive environmental law, has – as all contributions reason – an even larger potential to shake up national and supranational procedural law. Art. 9 (3) AC demands the Parties to the AC to ensure that “where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment”. The crucial question faced in the case of implementing measures and national laws is to establish what national requirements are admissible under art. 9 (3) AC, i. e. to what extent the Member States have discretion when laying down criteria for access to the courts in environmental matters. The contributions analyse the mani12 13

See AG Sharpston cited at: Seibert, p. 1042. See also Führ/Schenten/Schulze/Schütte, p. 1043 et seq.; Lau, p. 640.

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fold problems encountered by the Italian and the German legal order, which show that the foundation of access to the courts remains unclear, i. e. questions such as: does the AC favour an individual or a collective approach and are the rights of participation and standing only procedural or is a certain core of environmental provisions a substantive precondition for art. 9 (3) AC? Also, do art. 9 (2) and (3) AC focus on an interest-based approach or are rights-based approaches feasible? Irrespective of whether an interest-based approach is privileged, it remains unclear if “ecological interest” is the genuine interest of the environment or that of individuals to life in a healthy environment, i. e. whether the AC presumes a collective or an individual approach or is indifferent in this matter. Even where national law uses a rights-based approach, there remains the possibility of ‘indirect’ environmental protection via rights of individuals that also concern environmental matters (and, under certain circumstances, may be brought forward by NGOs) or of ‘direct’ rights of the environment, which are enforced by individuals, NGOs, or governmental bodies. One might rightly ask the question of whether the AC requires the Parties to introduce an interest-based system, at least as far NGOs are involved, but this does not solve the question of whose interests must be impaired – those of individuals or those of the environment. This again, will have repercussions on the system of participation in administrative procedures, where national laws require an interest of the participant in order to participate or have parallel requirements for standing in court proceedings and in the preceding administrative procedure. The wide interpretation of art. 9 (3) AC requirements for provisions in EU environmental law violated by Member States may also lead to a body of inconsistent case-law in the Member States in cases within and outside the scope of EU law. If protection of the environment as envisaged by the AC requires some form of ‘altruistic action’ or of a system of ‘objective’ legal protection, then implementation by the attribution of subjective rights to NGOs is – according to Angela Schwerdtfeger – problematic for their role envisaged by the AC. The AC does not encompass substantive environmental rights in order to widen access to the courts in those situations where there is no impairment of human rights, but of objective environmental provisions. This needs to be reflected in procedural implementations of the ‘public concerned’. We argue that there still remain different ways of implementation for the Parties, although the combination of art. 9 (2) and (3) AC renders the margin of discretion rather small. National procedural laws may follow a purely procedural approach, opening standing (for NGOs or for everyone) in environmental matters by dropping the requirement of ‘subjective rights’ or ‘legitimate interests’. A solution may, however, also be found by a material approach. According to art. 9 (2) AC, it seems to be legitimate to maintain the notion of ‘subjective rights’ to grant standing, while including NGOs in a way that they can claim the impairment of rights of the individual despite not being charged themselves. However, one may question whether a purely material approach focused on individual rights or individual legitimate interests fulfils the requirements of art. 9 (3) AC and the underlying idea of the AC i. e. to strengthen the standing of the environment and to enforce objective environmental

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provisions. At least where EU environmental law was concerned, it had already become clear in Trianel14 that EU Member States are rather limited in determining the type of rights which can be impaired at least as regards standing of NGOs.15 To maintain that environmental protection falls under public interest, and therefore is not enforceable by individuals (as has been the case in the German and Austrian procedural law), seems problematic. Most commentators of the judgment of the German FAC16 also criticise a construction whereby a subjective right is assumed in favour of the NGO, thus creating a ’representative standing’.17 It is, however, not the environment that is represented, but the individuals whose rights are impaired, e. g. by insufficient air pollution control. A similar problem is created by art. 12 Regulation (EC) 1367/06 transposing the AC into EU law as to the actions of EU authorities. According to art. 12, NGOs may only file an action in accordance with the relevant provisions of the Treaty of the Functioning of the European Union (TFEU). When an EU measure is at issue, an individual action of annulment under art. 263 (4) TFEU is only admissible if it is directed “against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.” In the WWF case18 the Court of First Instance held that the WWF as an environmental NGO was not ‘individually and directly concerned’ by a regulation of the European Council on quotas for cod in the framework of the Common Fisheries Policy. The right to participation for the public concerned under art. 6 AC was not seen as a sufficient reason to constitute an individual concern, as the NGO as part of the public was not concerned differently by the Council regulation than any other member of the public. The WWF did not recur to a violation of art. 9 (2) or (3) AC. A more recent decision of the Court19 might point in a different direction. An environmental NGO had demanded the review of a decision by the Commission in the context of the art. 10 Regulation 1367/06 internal review procedure. The Court did not have to address the question as to whether the NGO had standing, as, obviously, the Commission decision was directly addressed to the NGO. More interestingly, however, the court accepted an evaluation of the underlying EU regulation on which grounds the Commission had denied the internal review proceedings.20 The NGO could not have instituted proceedings against Regulation 1367/06, as it did not individually and directly concern the plaintiff and therefore it had no standing. 14

C-115/09, Trianel, ECR [2011] I-3673. Lohse, Unrestricted Access, p. 98. 16 BVerwG Decision of 5. 9. 2013, Case 7 C 21/12. 17 Lau, p. 639 and Schwerdtfeger, in this volume, p. 169. 18 T-91/07, WWF, ECR [2008] I-81. 19 T-396/09, Vereniging Milieudefensie and Stichting Stop Lichtverontreiniging Utrecht/ Commission of the European Union, ECLI:EU:T:2010:301. 20 T-396/09, supra note 19, para. 42. 15

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However, via art. 241 TFEU, the Court measured the EU implementation measure against the yardstick of art. 9 AC. It remains to be seen whether the Court also accepts a claim against an act not addressed to the plaintiffs which is not of individual and direct concern to them, arguing that it must be possible to institute proceedings before a EU court under the same conditions as requesting an internal review. As it stands, it seems quite questionable whether a more or less complete denial of standing for environmental NGOs before the EU courts conforms to art. 9 (3) and (4) AC,21 even more so now, that the Court has accepted that a too narrow definition of “measures” subject to internal review in art. 10 Regulation 1367/06 contravenes the objectives of the AC22. The same can be said as to the conditions for annulment procedures under art. 263 (4) TFEU as far as EU environmental law is concerned when binding upon EU authorities acting as public authorities (and not in their legislative capacity).

3. Implementing Restrictions of Access to Justice in National Law a) The Notion of ‘Environment’ and ‘Environmental Law’ Whereas art. 9 (2) AC only concerns decisions and measures within the scope of the art. 6 AC ‘participation requirements’, art. 9 (3) AC is directed at environmentrelated provisions in national law and under the reserve of national law requirements. For the implementation process this means that the EU and the States need to determine which provisions are environment-related and thus require the procedural law to provide for access to justice criteria. Two questions remain unresolved in this regard, apart from the question of whether ‘meeting the criteria laid down in its national law’ comprises a restriction to subjective/individual rights infringements for standing: firstly, the definition of environment and thus ‘environment-related provisions’ in the meaning of art. 9 (3) AC, and secondly, whether the public concerned are capable of seeking review for violations of non-environment-related provisions in the course of proceedings that fall under art. 6 and 9 (2) AC or if access to the courts in general, can rather be restricted to the violation of environment-related provisions like in Germany.23 As to the definition of the environment: art. 2 (3) AC defines ‘environment’ and includes all measures, laws, plans, policies etc. that can have an impact on the environment. Still, in relation to judicial protection, it remains silent on whether the relation of the provision to the protection of the environment must be direct or can also be indirect, i. e. if a plan also touching environmental matters but solely violating a 21 See in the context of the WWF-decision (supra note 18) Markus, p. 199 and in general more critical Schlacke, § 3 para. 240 – 242. There exists a communication by the ACCC, see: ECE/MP.PP/C.1/2011/4/Add.1., which finds the EU courts in breach of the AC, but it has so far not worked towards changes in the review procedure. 22 T-396/09, Vereniging Milieudefensie and Stichting Stop Lichtverontreiniging Utrecht/ Commission of the European Union, ECLI:EU:T:2010:301, paras. 65 – 69. 23 See contribution by Fasoli, in this volume, p. 185.

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non-environmental provision can be challenged. Moreover, it is questionable with regard to the aim of the AC whether States can limit review to those environmentrelated provisions that protect simultaneously individual interests of the claimant.24 The ACCC has – surprisingly, if one considers the scope of the AC i. e. environmental decision-making25 – claimed that under art. 9 (2) AC review procedures should not be restricted to “alleged violations of national law serving the environment”26. The same cannot be argued under art. 9 (3) AC, due to its clear wording. Yet, ‘environment-related’ could be interpreted very broadly by the ACCC in order to establish wide access to the courts for all measures that may – without being in breach of core environmental law – have an impact on the environment and very narrowly by domestic legislators and judiciaries in those systems that strive to restrict access to the courts. b) Defining Non-governmental Organisations: Promoting the Protection of the Environment States seem to have discretion when defining the criteria for NGOs to have access to justice, even after the CJEU decision in the Djurgarden27 case. In this respect, art. 2 (5) AC is of importance: requirements of national law must be clear and not put an excessive burden on NGOs. If these criteria are met, a diverging implementation and – within this margin – a more or less effective access to the courts is acceptable according to the ACCC. Especially criteria concerning the minimum amount of members, the area of geographical activity but also the question as to whether all NGOs for the protection of the environment can challenge all measures or whether their standing may be restricted to their field of expertise will still have to stand the test of conformity with the AC. c) Standard of Review Another restriction to effective review in environmental matters may be a restriction as to the standard of review: if according to national law, review is only directed at the substantive legality of measures and not at their procedural legality or if – like in the German legal order according to sec. 46 Administrative Procedural Act (Verwaltungsverfahrensgesetz) – isolated procedural illegality does in general not lead to the abolition of the challenged measure. Bilun Müller shows that the non-relevance of procedural errors in the review of administrative decision, even after the Altrip case, which mitigated at least the burden of proof for the claimant,28 combined 24

See also Seibert, p. 1042. See contribution by Müller, in this volume, p. 199. Similar Seibert, p. 1044. 26 ACCC/C/2008/31, para. 78. The same had already been stated by Schlacke, § 3 para. 109. 27 Case C-263/08, Djurgården-Lilla Värlans Miljöskyddsförening, ECLI:EU:C:2009:631. 28 Case C-72/12, Altrip, ECLI:EU:C:712. 25

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with the lack of reviewability of objective environmental provisions, leads in a judicial system based on the infringement of individual rights to a very narrow access to the courts in environmental matters, as many of the environmental requirements are either objective or procedural requirements.29 Legal provisions such as sec. 46 Administrative Procedural Act are according to the ACCC even problematic if they theoretically allow a review of procedural errors, but are applied by the courts in a manner that excludes review due to the procedural errors deemed to be of no importance for the result. This seems to be a problem not only in the German, but also in the Italian legal order. d) Foreclosure and Exemption of Causes of Action Restrictions aimed at maintaining the ‘old’ system of subjective rights can also be detected where implementation measures provide for foreclosure and the exemption of certain causes of action, even for NGOs. Apart from the well-known and previous problems as to limitation of causes of action on environmental matters under art. 9 (2) AC, provisions that demand environmental NGOs to put forward all reasons for challenging a decision in the administrative revision procedure or be excluded from a review by the court, are increasingly being criticised.30 The German provisions on foreclosure (sec. 2 (3) Environmental Appeals Act) are subject to an infringement procedure and might be considered by the CJEU to impair the effective access to justice of NGOs. e) Inequality Between Individuals and NGOs as well as Between Claims in Environmental Matters and Those Outside Environmental Law Whereas the CJEU has been rather clear in its Trianel and Slovak Brown Bear decisions that environmental NGOs must have standing in environmental matters and thus triggered a revision of (German) procedural provisions and the foregoing problematic case-law, it is still to be established whether individuals must be treated in the same way. A legal basis for equal treatment might be included in the objectives of the Aarhus Convention and its notion of ‘public concerned’, but also in national or supranational principles of non-discrimination. In Italy and Germany, as well as in Austria, standing without impairment of an individual right or legitimate (own) interest is only attributed to NGOs, which may be justified because of the different capacities of NGOs in judicial matters and the wording of the AC. Yet, inequality may arise, where, like in the German sec. 4a Environmental Appeals Act, restrictions for claims in environmental matters

29 30

Müller, in this volume, p. 199. See Führ/Schenten/Schulze/Schütte, p. 1043 et seq.; Seibert, p. 1044.

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are extended to individual claimants, who may be better off in non-environmental related cases.31

III. Modes of Implementation Another unsolved question, which is furthermore treated slightly different by the CJEU and the ACCC (see below IV.), is that of who should implement the AC and transposing EU law in order to bring the national legal order in conformity with supreme supra- or international law. In general, owing to the principles of legal certainty and effective implementation, international treaties as well as EU law must be transposed by acts of parliament or other laws and decrees based on acts of parliament. However, apparently both the CJEU as well as the ACCC accept – subject to specific conditions – that implementation by national laws is allowed to be interpreted accordingly by courts and administrative bodies.32 It is a recurring theme in the functioning of multi-level legal systems whether implementation is effectuated by ‘law in the books’ in accordance with the supreme law (i. e. wording of legal texts) or rather by ‘law in action’ (i. e. the interpretation and application by courts, administrative bodies, lawyers, and the society itself).33 The same seems to be true when we look at the recent decisions by the CJEU in the Slovak Brown Bear Case34 and even more of the ACCC against Germany35. When scrutinizing the proper implementation of the AC, many AC requirements seem to be met by interpretation through the courts even if the written legal text does not seem to conform to the AC. The ACCC thereby takes a “general picture approach”36 and accepts this argument for the conformity of national law with the AC, if the case-law is sufficiently precise and clear, consistent and predictable.37 The CJEU does not show a consistency in the case-law on that matter, but requires the Member States to interpret harmoniously the national law to the fullest extent possible and seems therefore to accept implementation by national case-law if there is a legal basis and interpretation is effectuated in accordance with national methods of interpretation. 31

Contribution by Müller, in this volume, p. 199. See also Seibert, p. 1045. Case 143/83, Commission v. Denmark, ECR [1985], 427, para. 11; Case 29/84, Commission v. Germany, ECR [1985], 1661, para. 23; Case C-59/89, Commission v. Germany, ECR [1991] I-2607, para. 25 et seq.; Case C-300/95, Commission v. United Kingdom, ECR [1997] I-2649, paras. 37 – 39; Case C-144/99, Commission v. The Netherlands, ECR [2001] I3541; Commission v. Sweden, ECR [2002] I-4147, para. 18; Case C-177/04, Commission v. France, ECR [2006] I-2461, para. 48. C.f. Ruffert, Art. 288 AEUV, para. 78; Gellermann, p. 22 et seq.; Herrmann, p. 208 et seq.; von Danwitz, p. 76 et seq. 33 The terms where coined around 1912 by Pound, p. 12 and with similar ideas: Ehrlich, p. 21. 34 Case C-240/09, Lesoochranarske zuskupenie VLK, ECR [2011] I-1255. 35 ECE/MP.PP/C.1/2014/8, 4 June 2014. 36 ECE/MP.PP/C.1/2014/8, 4 June 2014 para. 64 and analysis by Schwerdtfeger, in this volume, p. 169 and Fasoli, in this volume, p. 185. 37 See contribution by Fasoli, in this volume, p. 185. 32

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Yet, as the contribution by Angela Schwerdtfeger shows, this shift of powers might contravene the principle of democracy, legal certainty, and the attribution of powers within the state. In general, a harmonious interpretation by the courts extra or praeter legem may not reflect the will of the people as represented by parliament and may therefore be problematic from the point of view of national law. Furthermore, Elena Fasoli draws our attention to the fact that the CJEU38 and the ACCC39 use different criteria in order to assess a proper implementation by standing case-law of national courts. This might lead to frictions and divergences when a specific standing case-law is accepted by one reviewing body, but not by the other.

IV. Risk of Divergence due to Review by Differing International Bodies The combination of review procedures before EU courts (restricted to the scope of EU environmental law and EU measures for the implementation of the AC) and before the ACCC, leads to an interesting overlap between different systems of judicial review. The same matter in dispute can be reviewed twice or maybe even three times where environmental rights parallel human rights in the European Convention on Human Rights (ECHR), like the right to health. This may be a positive aspect for a “thick” layer of review and an effective implementation of review within the EU, but it also raises difficult questions as to divergence of the different legal regimes. (1) Firstly, the circle of Member States is not identical and therefore, decisions of the CJEU are not binding or authoritative in all signatory states of the AC. This can mean that, as long as the ACCC has not rendered a recommendation on the same question, interpretation and implementation in EU signatory-states and non-EU signatory states diverge. It could also mean a spill-over of findings of the CJEU on nonEU Member States; however, this is unlikely as long as the CJEU argues with the very specific setting of supranational EU law.40 (2) Secondly, strictly speaking, the CJEU and the ACCC both apply different standards of review and check different matters of dispute. Whereas the CJEU can only interpret EU law and thereby implicitly rule on the conformity of implementing measures of the Member States with EU secondary law, the ACCC interprets the Aarhus Convention and scrutinizes implementation measures of the Member States against the provisions of the AC. This again, does not need to be identical. (3) Thirdly, the Court and the CJEU are much inclined to interpret the AC and have done so in various decisions (Trianel, Altrip, Slowak Brown Bear, Djurgården, but 38

Case C-240/09, Lesoochranarske zuskupenie VLK, ECR [2011] I-1255. ECE/MP.PP/C.1/2014/8, 4 June 2014. 40 See already Lohse, Unrestricted Access, p. 103. 39

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also Vereniging Milieudefensie). One can recognise this as an assumption of competences by interpreting the scope of EU law widely41 as according to art. 19 TEU, and the specific provisions in art. 263 and 267 TFEU the courts of the EU are only to interpret EU law. Moreover, the question of what happens when the CJEU and the ACCC arrive at diverging findings is intriguing. An EU Member State may in this case not be able to maintain a provision in breach of EU law as a filter for AC law, even though the same provision would be perfectly in order for a non-EU Member State under the AC. So far, a cross-referencing and cross-fertilization between the CJEU and the ACCC can be noticed, possibly because the two bodies are also aware of the problems caused by diverging interpretation. Yet, the contributors to Part III draw our attention to the fact that the two bodies apply different yardsticks when evaluating the correct implementation (see above III.). Thus, in a concrete case on sufficient implementation, the findings may differ as shown in a tentative table drawn up by the panelists at the Turin conference and amended by the author: Possible findings CJEU

Possible findings ACCC

Existing legislation (in line with EU law and the AC) leaving no scope for interpretation

Acceptable

Acceptable

No legislation in the MS ! case-law needed

The general legal context Consistent case-law is suffimust be sufficiently precise cient (general-picture apand clear. Implementation proach) only by case-law is problematic due to legal clarity and effectiveness of EU law.

Legislation leaving scope for Not a clear line so far. interpretation in line with EU law/AC –> case-law needed

For implementation the caselaw must be sufficiently precise and clear, consistent and predictable.

Existing legislation (wording) in breach of AC/EU law ! case-law in line with AC and EU law

Ok, but case-law must (presumably) be sufficiently precise and clear, consistent and predictable.

Still in breach of EU law (at least if methods of national law prohibit an interpretation in line with EU law)

V. The Future of Access to Justice (in Environmental Matters) As can be seen, the AC may have the power to change the whole system of access to the courts in environmental matters due to art. 9 (3) AC. Most communications by the ACCC seem to concern questions of access to justice – it may be simply that the 41

See the contribution by Schwerdtfeger, in this volume, p. 169.

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idea of the AC is different from that of many national legal orders. So far, Germany seems to try a minimal implementation by only implementing the EU Directives and restricting standing to the scope of the Environmental Appeals Act, but as the communication by the ACCC shows, compliance with the AC is questionable in this regard. The same holds true regarding a restriction of access to the courts in planning and environmental impact assessment matters, which is momentarily sketched by the EU implementing measures. Simultaneously, the doubling of implementing measures caused by the form of mixed agreement may prove to be a major engine of change in the EU member states, at least as far as the scope of EU environmental law and EU implementing measures reaches. It may, however, also prove problematic, where the EU has no competence or cannot enforce the implementation of its law. The ACCC concedes that the EU cannot implement the whole of the AC due to its special construction, but this should not hinder the Member States to comply with it, even when implementing EU directives with a margin of discretion.42 It does, however, not answer the question of means of action for the Member States if EU implementing measures prove incorrect and at the same time, does not leave a suitable margin of implementation for the Member States, thus requiring them to implement EU law in breach of the AC. References Danwitz, Thomas von: Normkonkretisierende Verwaltungsvorschriften und Gemeinschaftsrecht, in: Verwaltungsarchiv (VerwArch) 1993, p. 73 – 96. Ehrlich, Eugen (Rehbinder, Manfred (ed.)): Grundlegung der Soziologie des Rechts, 4th ed. 1989. Führ, Martin/Schenten, Julian/Schulze, Falk/Schütte, Silvia: Verbandsklage nach UmwRG – empirische Befunde und rechtliche Bewertung, in: Neue Zeitung für Verwaltungsrecht (NVwZ) 2014, p. 1041 – 1046. Gellermann, Martin: Beeinflussung des bundesdeutschen Rechts durch Richtlinien der EG, 1994. Herrmann, Christoph: Richtlinienumsetzung durch die Rechtsprechung, 2003. Lau, Marcus: Das Urteil des BVerwG vom 5. 9. 2013 oder vom Versuch, den ‘slowakischen Braunbären’ zu zähmen?, in: NVwZ 2014, p. 637 – 640. Lohse, Eva Julia: Surprise? Surprise! – Case C-115/09 (Kohlekraftwerk Lünen) – a Victory for the Environment and a Loss for Procedural Autonomy of the Member States?, in: European Public Law (EPL) 2012, p. 249 – 268. – Unrestricted Access to Justice for environmental NGOs?, – The decision of the ECJ on the non-conformity of § 2 (1) Umweltrechtsbehelfsgesetz with Directive 2003/35 on access to justice (Case C-115/09) in: elni-review 2011, p. 96 – 103. 42 ECE/MP.PP/2008/5/Add.10, para. 57. This does, however, not always suffice, see: ECE/ MP.PP/C.1/2011/4/Add.1, paras. 89 – 90.

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Markus, Till: Individual- und Verbandsklagebefugnisse gegen Rechtsakte der Gemeinsamen Europäischen Fischereipolitik, in: Zeitschrift für Umweltrecht (ZUR) 2009, p. 194 – 200. Pound, Roscoe: Law in the books and Law in action, in: American Law Review 1910, p. 12 – 36. Ruffert, Matthias, in: Calliess, Christian/Ruffert, Matthias (eds.): EUV/AEUV – Kommentar, 4th ed. 2011. Schlacke, Sabine, § 3, in: Schlacke, Sabine/Schrader, Christian/Bunge, Thomas (eds.): Informationsrechte, Öffentlichkeitsbeteiligung und Rechtsschutz im Umweltrecht, Aarhus-Handbuch, 2010. Seibert, Max-Jürgen: Verbandsklagen im Umweltrecht – Aktueller Stand, Perspektiven und praktische Probleme, in: NVwZ 2013, p. 1044 – 1049.

Implementation and the Separation of Powers By Angela Schwerdtfeger1 Abstract Die Umsetzung von Völker- und Unionsrecht kann bedeutende Auswirkungen auf die nationale Gewaltenteilung haben. Verschiedene Entscheidungen zu Art. 9 Abs. 3 Aarhus-Konvention liefern aus deutscher Sicht ein anschauliches Beispiel für eine kritikwürdige Gewichtsverlagerung vom Gesetzgeber auf die Gerichte: In seiner Entscheidung zum slowakischen Braunbären hat sich der Gerichtshof der Europäischen Union (EuGH) eine Zuständigkeit angeeignet, die stark umstritten ist und in der Sache zu einer Missachtung des Willens der Vertragsparteien der Aarhus-Konvention führt. Durch die postulierte weite Auslegungspflicht nationaler Gerichte weist der Gerichtshof diesen die Umsetzung zu, wenn der Gesetzgeber seine Aufgabe nicht ausreichend erfüllt. Im Anschluss an die Braunbär-Entscheidung hat das deutsche Bundesverwaltungsgericht Umweltschutzorganisationen auf der Grundlage von § 47 Abs. 1 Bundesimmissionsschutzgesetz ein eigenes subjektives Recht im Sinne des § 42 Abs. 2, 2. Halbsatz Verwaltungsgerichtsordnung auf Aufstellung eines Luftreinhalteplans gewährt. Das Gericht konstruiert systemwidrig eine egoistische Verbandsklage und ignoriert den ausdrücklichen Willen des Gesetzgebers, der keinen Änderungsbedarf gesehen hatte. Durch den Verzicht auf jeglichen personalen Bezug des subjektiven Rechts entzieht das Gericht dem Konzept der Klagebefugnis seine bisherige Grundlage. Damit überschreitet es die Grenze zulässiger Auslegung und greift in den Bereich des unmittelbar demokratisch legitimierten Gesetzgebers über. Auch eine kürzlich ergangene Entscheidung des Aarhus Compliance Committee zur deutschen Rechtslage begünstigt eine starke Rolle der rechtsprechenden Gewalt bei der Umsetzung, indem das Gremium bei seiner Prüfung über das geschriebene nationale Recht hinaus die Anwendung und Auslegung desselben durch die Gerichte berücksichtigt. Diese Entscheidungen können als Reaktion auf einen nicht ausreichend aktiven Gesetzgeber angesehen werden. Sie tragen einerseits zu einer effektiven Rechtsverwirklichung bei, wirken andererseits jedoch in bedenklicher Weise auf die Gewaltenteilung ein. Es ist Aufgabe des nationalen Gesetzgebers, den durch EuGH und Aarhus Compliance Committee geprägten Konventionsvorgaben gerecht zu werden und so die rechtsprechende Gewalt in ihre Schranken zu weisen.

1 I would like to thank all participants of panel 3 (court proceedings) for the fruitful discussions.

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I. Introduction The implementation of international treaties and European Union (EU) law often challenges the national legal order. Apart from difficulties and changes in detail, implementation can also lead to a significant shift of powers between public authorities. This development is partly encouraged by the case law of the Court of Justice of the European Union (CJEU) and international institutions applying dynamic methods of interpretation. In Germany, the implementation of art. 9 (3) Aarhus Convention (AC) demonstrates a growing influence of the judicial power in relation to the legislature. Decisions of the CJEU and the Aarhus Compliance Committee (ACCC) favour this phenomenon. It is the aim of this paper to subject the shift of powers in the implementation context to critical scrutiny, taking the German implementation of art. 9 (3) AC as an example. After a short overview of the relevant treaty provisions and the respective case law (II.), the paper chronologically elaborates on the decisions of the CJEU (III.), the German Federal Administrative Court (FAC) (IV.), and the ACCC (V.) dealing with art. 9 (3) AC and its implementation into German law. The conclusion considers possible reasons for the examined development and analyses the protagonists’ functions – especially with regard to law enforcement (VI.).

II. Background 1. Art. 9 AC Art. 9 AC constitutes the Convention’s so-called ‘third pillar’ and deals with access to justice in environmental matters. Art. 9 (1) AC prescribes access to justice to realise the right to environmental information stipulated in art. 4 AC. Art. 9 (2) AC deals with access to justice regarding decisions in the scope of art. 6 AC (public participation in decisions on activities which may have a significant effect on the environment). Its subparagraph 2 explicitly mentions the AC’s objective of giving the public concerned wide access to justice2. Additionally, art. 9 (3) AC covers in the most general sense access to justice with regard to “provisions of (the Parties’) national law relating to the environment”. In Germany, the implementation of art. 9 (1) AC did not cause any considerable problems.3 For a long time, most of the discussion on access to justice under the AC had focussed on art. 9 (2) AC and the secondary EU law which implemented it4. This 2

For further substantiation of this term see Schwerdtfeger (2010), p. 116 – 122. See Schwerdtfeger (2010), p. 101 – 111. 4 Art. 10a Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ L 175, 5 July 1985, p. 40 – 48; subsequently art. 11 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, OJ L 26, 28 January 2012, p. 1 – 21. Art. 15a Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, OJ L 257, 3

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is evidenced by court decisions on the national and on the European level – such as Djurgården5, Trianel6 or lately Altrip7. Correspondingly, art. 9 (3) AC had long been overshadowed by this discussion and – as the CJEU demonstrated on 8 March 2011 – underestimated. 2. Relevant Case Law On that day, the CJEU gave its Grand Chamber judgment in case C-240/09 – Lesoochranárske zoskupenie VLK which has become famous as the Slovak brown bear case. Referring to art. 9 (3) AC, the Court held that national courts shall interpret their national law – to the fullest extent possible – as effectively enabling environmental organisations to challenge acts and omissions which contravene provisions of EU environmental law.8 On 5 September 2013, the German FAC gave a far-reaching judgment on the basis of the CJEU’s decision in the Slovak brown bear case.9 The Court held that environmental organisations can require the drawing up of a sufficient air quality plan. This judgment whirls the previous and long-established understanding of legal protection in German administrative law focussing on subjective rights. Taking into consideration the FAC’s judgment, the ACCC – established on the basis of art. 15 AC – found a two-fold non-compliance by Germany with regard to art. 9 (2) and (3) AC, that was confirmed by the Meeting of the Parties at its fifth session, on 30 June/1 July 2014.10

10 October 1996, p. 26 – 40; subsequently art. 16 Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, OJ L 24, 29 January 2008, p. 8 – 29; subsequently art. 25 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control), OJ L 334, 17 December 2010, p. 17 – 119. 5 Case C-263/08, Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd. 6 Case C-115/09, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eV v Bezirksregierung Arnsberg (Trianel). 7 Case C-72/12, Gemeinde Altrip and Others v Land Rheinland-Pfalz. 8 Case C-240/09, Lesoochranárske zoskupenie VLK v Ministerstvo zˇivotného prostredia Slovenskej republiky (Slovak brown bear), paras 50 et seq. 9 FAC (BVerwG), 7 C 21.12, BVerwGE 147, 312 et seq. 10 Findings and recommendations with regard to communication ACCC/C/2008/31, concerning compliance by Germany adopted by the Compliance Committee on 20 December 2013, ECE/MP.PP/C.1/2014/8, 4 June 2014; Decision V/9 h on compliance by Germany adopted by the Meeting of Parties to the Convention at its fifth session, ECE/MP.PP/2014/2/ Add.1, 14 October 2014.

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III. First Step: CJEU Versus Parties to the Convention and Pro National Courts The first assumption of powers took place on the EU level. In the Slovak brown bear case, the CJEU used its jurisdiction to interpret art. 9 (3) AC, although no EU legislation had been adopted to implement the obligations deriving from this paragraph with regard to national legal protection11.12 According to the CJEU, “it is for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9 (3) of the Aarhus Convention and the objective of effective judicial protection of the rights conferred by EU law, so as to enable an environmental protection organisation […] to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law”.13 This general statement does not include any qualifications. Thus, the astonishing consequence of the judgment seems to be that of wider access to justice in the area of art. 9 (3) AC14 as compared to its paragraph 2, although the intention of the Parties to the Convention had been diametrically opposite: art. 9 (3) AC prescribes review procedures in addition and without prejudice to those referred to in paragraphs 1 and 2. It applies generally to “provisions of (the Parties’) national law relating to the environment”. As compared to art. 9 (2), the subsequent paragraph 3 broadly addresses ‘members of the public’ instead of ‘members of the public concerned’, and includes explicitly ‘acts and omissions by private persons and public authorities’. However, the Parties to the Convention had chosen these terms only in combination with an extensive reservation in favour of their national law allowing for “criteria […] laid down in [their] national law”, that have to be met by the members of the public.15 The judgment ascribes no importance to this underlying intention of the Parties. By emphasizing an extensive interpretation duty of the national courts, the CJEU furthermore assigns the task of implementation to the judicial branch, if the legislature has not fulfilled it sufficiently. Even if this may be due to the nature of the referral for a preliminary ruling – which is always initiated by a national court –, the consequences on the national level cannot be ignored. In Germany, legal scholarship dis11 Regulation 1367/2006/EC of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies only concerns the institutions/bodies of the EU. 12 AG Sharpston, opinion, 15 July 2010, C-240/09, Slovak brown bear, para. 77, criticises that the Court steps “into the legislature’s shoes” although “the legislature has, thus far, intentionally chosen not to act”. 13 Case C-240/09, Slovak brown bear, para. 51. 14 For an analysis of art. 9 (3) AC see Schwerdtfeger (2010), p. 286 – 289. 15 For the legislative history of the Convention see Zschiesche (2002), p. 26 et seq.; Zschiesche (2001), p. 182.

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cussed the CJEU’s judgment in a highly controversial manner16, and the decision led to an inconsistent national jurisdiction17. The controversy culminated in the judgment of the German FAC.

IV. Second Step: German FAC Versus Legislature To evaluate the impact of the FAC’s judgment of 5 September 2013, it is necessary to first give an overview of the German system of legal protection in administrative law18. 1. Legal Protection in German Administrative Law a) Protective Norm Doctrine Legal protection in German administrative law in principal means subjective legal protection. The decision for this model of legal protection has been taken on the constitutional level as evidenced by art. 19 (4) first sentence of the Basic Law (Grundgesetz).19 According to sec. 42 (2) Code of Administrative Court Procedure “[u]nless otherwise provided by law, [an] action shall only be admissible if the plaintiff claims that his/her rights have been violated […]”. The German system of subjective legal protection in administrative law thus focuses on rights in the sense of legally protected interests as opposed to purely factual interests. A plaintiff has to claim that a legislative provision protecting also his/her interests has been violated by a public authority (protective norm doctrine – Schutznormtheorie). The decision on standing is therefore taken with the decision on rights to be protected by a legislative provision and thus rests with the legislature. b) Environmental Organisations In general, even associations can bring an action only with regard to their own rights – thus constituting an ‘egoistic action’ (egoistische Verbandsklage) as opposed to an ‘altruistic action’ (altruistische Verbandsklage). The violation of legislative 16

See e. g. Schink, p. 622 – 630; Berkemann, p. 1137 – 1148; Schlacke (2011), p. 312 – 316. Denying standing of NGOs: OVG Koblenz, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2013, 881, p. 883; Verwaltungsgerichtshof (VGH) Kassel, 20 March 2013, 2 B 1716/ 12, paras 77 – 81. Granting standing of NGOs: VGH Kassel, Natur und Recht (NuR) 2012, 493, p. 495; Oberverwaltungsgericht (OVG) Koblenz, Zeitschrift für Umweltrecht (ZUR) 2013, 293, p. 296; Verwaltungsgericht (VG) Wiesbaden, ZUR 2012, 113, p. 115; VG München, ZUR 2012, 699, p. 700; VG Augsburg, NuR 2013, p. 284. 18 For a comparative analysis of legal standing before national administrative courts (including Belgium, England and Wales, France, Germany, Hungary, Italy, the Netherlands, Poland, Sweden, Turkey) see Eliantonio et al., p. 61 – 84. 19 “Should any person’s rights be violated by public authority, he may have recourse to the courts.” 17

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provisions that purely aim at the protection of the environment but do not specifically protect human health or other personal interests cannot be claimed as a general rule – neither by individuals nor by associations. However, German environmental law contains some special provisions granting access to justice to non-governmental environmental organisations.20 As individual rights cannot and need not be claimed in these cases, legal protection is objective in nature and covered by the exception of sec. 42 (2) first part of the Code of Administrative Court Procedure. However, the Environmental Appeals Act,21 enacted to implement art. 9 (2) AC, had been a special case initially. c) Excursus: CJEU, Case C-115/09 – Trianel Right from the beginning, sec. 2 (1) Environmental Appeals Act has explicitly stated that associations were not required to maintain an impairment of their own rights to be granted standing. However, – besides other qualifications – they had to assert that the decision in question contravened legislative provisions which conferred individual rights. Thus, environmental organisations were only entitled to claim the violation of provisions that could already be claimed by the individuals protected. This restriction of access to justice for environmental organisations was held to be contrary to art. 10a Directive 85/337/EEC implementing art. 9 (2) AC by the CJEU in its Trianel judgment of 12 May 2011.22 It follows from art. 10a (3) second and third sentence of the Directive as well as from art. 9 (2) subparagraph 2 second and third sentence AC, that whichever option a Member State chooses for the admissibility of an action (a sufficient interest or an allegation of the impairment of a right), environmental organisations are entitled to have access to justice.23 The AC and the Directive grant a special role to these organisations as compared to individuals.24 With regard to law enforcement deficiencies, this privilege is primarily reasonable in those areas of environmental law where no individual plaintiffs exist and thus where no impairment of rights can be claimed, as the legislative provisions in question protect the public interest.25 20 On the federal level the respective provisions are sec. 64 Federal Nature Conservation Act (Bundesnaturschutzgesetz), sec. 11 (2) Environmental Damage Act (Umweltschadensgesetz), and sec. 2 Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz) implementing art. 9 (2) AC and the respective secondary EU law. The Environmental Damage Act refers to the Environmental Appeals Act. 21 Gesetz über ergänzende Vorschriften zu Rechtsbehelfen in Umweltangelegenheiten nach der EG-Richtlinie 2003/35/EG (Umwelt-Rechtsbehelfsgesetz), in the version of its promulgation of 8 April 2013 (BGBl. I, p. 753), latest amendment by art. 2 (52) of the law of 7 August 2013 (BGBl. I, p. 3154). 22 Case C-115/09, Trianel. For an analysis of the judgment see Wegener, p. 363 – 367; Appel, p. 414 – 416; Schwerdtfeger (2012), p. 80 – 89. 23 Case C-115/09, Trianel, paras. 40, 42. 24 Case C-115/09 , Trianel, paras. 44 – 46. 25 Cf. Case C-115/09, Trianel, para. 46.

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Consequently, the legislature repealed the restriction of judicial review to legislative provisions conferring individual rights in sec. 2 Environmental Appeals Act and granted environmental organisations access to justice also with regard to legislative provisions enacted in the public interest.26 Until the entry into force of this amendment, environmental organisations could rely directly on art. 10a (3) third sentence of Directive 85/337/EEC before the national courts to be granted standing, as this provision was unconditional and sufficiently precise27. 2. The Recent Judgement of the German FAC In its judgement of 5 September 2013, the FAC granted an environmental organisation standing to enforce German legislation implementing Directive 2008/50/EC on ambient air quality and cleaner air28. The judgment makes reference to art. 9 (3) AC and the Slovak brown bear case. Its noteworthiness stems from the legal construction conducted by the Court. a) Legal Construction If associations do not claim the infringement of their own rights in the sense of the protective norm doctrine, the action is not an ‘egoistic’ but an ‘altruistic’ one. Therefore, also those actions of environmental organisations that serve the public interest of environmental protection are qualified as ‘altruistic actions’. As regards standing, altruistic actions of environmental organisations by their nature fall under the exception of sec. 42 (2) first part of the Code of Administrative Court Procedure not requiring an infringement of their own rights.29 However, the aforementioned exception30 implies the existence of a legislative provision stipulating a different standing requirement. There was no such provision in the case before the FAC. Firstly, although valid in Germany due to the law approving the AC31, art. 9 (3) AC does not have di-

26 Art. 1 Gesetz zur Änderung des Umwelt-Rechtsbehelfsgesetzes und anderer umweltrechtlicher Vorschriften, 21 January 2013, Bundesgesetzblatt (BGBl.) I, p. 95 – 100, 28 January 2013. 27 Case C-115/09, Trianel, para. 57. 28 Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, OJ L 152, 11 June 2008, p. 1 – 44. 29 Cf. also Schlacke (2011), p. 316; referring to this exception with regard to the Slovak brown bear case Berkemann, p. 1147 et seq.; see also Schink, p. 629. 30 “Unless otherwise provided by law, […]”. 31 Gesetz zu dem Übereinkommen vom 25. Juni 1998 über den Zugang zu Informationen, die Öffentlichkeitsbeteiligung an Entscheidungsverfahren und den Zugang zu Gerichten in Umweltangelegenheiten (Aarhus-Übereinkommen), 9 December 2006, BGBl. II, p. 1251 – 1284.

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rect effect32 : this provision does not contain any clear and precise obligation capable of directly regulating the legal position of individuals, but is subject, in its implementation and effects, to the adoption of a subsequent measure.33 Secondly, as the German government had not seen any need for further legislation to implement art. 9 (3) AC,34 no additional statute was enacted. The FAC therefore held that sec. 47 (1) Federal Control of Pollution Act (Bundesimmissionsschutzgesetz)35 not only grants directly affected individuals a right to require the drawing up of a sufficient air quality plan, which has been recognised by the German judiciary since the Janecek judgment by the CJEU36. According to the Court, environmental organisations recognised under art. 3 Environmental Appeals Act37 have the same right: a subjective right in the sense of the protective norm doctrine falling under sec. 42 (2) second part of the Code of Administrative Court Procedure.38 Consequently, such an action of an environmental organisation has to be qualified as an ‘egoistic action’.39 As there was no legislative provision in the sense of sec. 42 (2) first part of the Code of Administrative Court Procedure stipulating an exceptional standing requirement, the FAC could only attain the desired end by utilising the questionable subjective rights construction. However, the end does not always justify the means.

32 Case C-240/09, Slovak brown bear, para. 52. Frenz, p. 2 et seq., nevertheless wants to apply the statutory exception in sec. 42 (2) first part of the Code of Administrative Court Procedure combined with art. 9 (3) AC. 33 Case C-240/09, Slovak brown bear, para. 45. 34 Bundestag-Drucksache 16/2497, p. 46; FAC/BVerwG 7 C 21.12, para. 31. 35 “Air quality plans, action plans, regulations of the Länder: [w]here the limit values plus the statutory margins of tolerance defined by regulation pursuant to Paragraph 48a (1) are exceeded, the competent authorities shall draw up an air quality plan which determines the measures necessary for the permanent reduction of atmospheric pollutants and which complies with the requirements of the regulation”. 36 Case C-237/07, Dieter Janecek v Freistaat Bayern. As this judgment took the directive’s objective of health protection as a starting point in line with the previous case law and the German approach, it was above all remarkable for establishing rights with regard to planning instruments that are characterised by the need of prognoses and thus assume a certain margin of appreciation by the authorities; see Schwerdtfeger (2010), p. 173 – 180, for a further analysis. 37 FAC/BVerwG 7 C 21.12, paras. 47 – 50. The resorting by the Court to a statute, which had previously been enacted to implement art. 9 (2) (!) AC, reveals the weakness of the judgment, as it is the legislature who has to decide on the conditions of standing. 38 FAC/BVerwG 7 C 21.12, para. 38. Sec. 42 (2) second part of the Code of Administrative Court Procedure presupposes a respective material right and does not grant such a right by itself; see also Bunge, p. 7 et seq. 39 Gellermann, p. 1342, also denies an altruistic action.

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b) Criticism aa) Disruption of the German Concept of Standing The construction of such a subjective right of environmental organisations runs contrary to the previous, long-established German understanding of subjective rights requiring a legally protected personal interest of the plaintiff him-/herself.40 In the area of environmental law, the relevant starting point is in general the right to life and physical integrity, which is stipulated in art. 2 (2) first sentence of the Basic Law41. This is also valid for the interpretation of sec. 47 (1) of the Federal Control of Pollution Act with regard to individuals – the subject of the CJEU’s Janecek judgment42, to which the FAC refers in its judgment, aside from the Slovak brown bear decision. The right of every person to live in an environment adequate to his or her health and well-being (art. 1 AC) demonstrates the link between environment and health. However, an environmental organisation has no health to be protected,43 and well as that there is no other identifiable personal interest of the organisation that shall be protected by sec. 47 (1) of the Federal Control of Pollution Act. Consequently, the FAC established an ‘egoistic action’ for environmental organisations in a situation that constitutes a clear ‘altruistic action’ situation according to the long-established German system of standing. bb) Material versus Procedural Approach In addition to the severe disruption of the German system of legal protection, this solution is also detrimental to the role of environmental organisations envisaged by the AC. The material construction of subjective rights, and thus an ‘egoistic action’ (sec. 42 (2) second part of the Code of Administrative Court Procedure) chosen by the FAC, entails disadvantages for the environmental organisations as compared to a procedural approach in the shape of an ‘altruistic action’ – a purely procedural right without material content (sec. 42 (2) first part of the Code of Administrative Court Procedure).44 In general, the scope of judicial review correlates with the standing requirements. Thus, concerning the material approach, according to sec. 113 (1) first sentence and (5) first sentence of the Code of Administrative Court Procedure45, ju40

See also Frenz, p. 1. “Every person shall have the right to life and physical integrity.” Another possible starting point is the right to property stipulated in art. 14 Basic Law. 42 Cf. Case C-237/07, Janecek, paras. 37 et seq. 43 See also FAC(BVerwG 7 C 21.12, para. 42; Franzius, p. 547. 44 For a general comparison between material and procedural approach see Schwerdtfeger (2010), p. 209 – 218. 45 “(1) Insofar as the administrative act is unlawful and the plaintiff’s rights have been violated, the court shall rescind the administrative act and any ruling on an objection. (…) (5) Insofar as the rejection or omission of the administrative act is unlawful and the plaintiff’s rights are violated thereby, the court shall announce the obligation incumbent on the 41

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dicial review is in principle restricted to the violation of those rights claimed for standing and in this regard is narrower than the procedural approach.46 The material approach also contradicts the intention of the AC, which aims at a strengthened enforcement of environmental law especially in those areas of law where no subjective rights are affected and therefore no individual plaintiffs exist; environmental organisations shall be granted access to justice especially in those cases.47 This calls for a procedural approach, as well.48 cc) Limits of Interpretation The judgment has severe consequences for the principle of separation of powers49. In line with its case law on the interpretation in conformity with EU law, the CJEU in its Slovak brown bear judgment required an interpretation “to the fullest extent possible”50. There was no room for interpretation by the FAC51 as no link to a personal interest could be established. Certainly, the judicial branch has the competence to interpret the law, and courts have shaped the understanding of subjective rights in the sense of the protective norm doctrine for ages accordingly. Nevertheless, the case at hand is special in two regards. Firstly, as it is the legislature’s task to decide on subjective rights – and consequently standing – according to the German approach, interpretation by the courts must not contradict the express intention of the legislature if it is not supposed to erase its own basis. Referring to the broad margin of appreciation in art. 9 (3) AC, the German legislature had previously rejected to enact additional statutes to implement this paragraph52 – although being aware of the narrow concept of subjective rights53. administrative authority to effect the requested official act if the case is mature for adjudication. Otherwise, it shall hand down the obligation to notify the plaintiff, taking the legal view of the court into consideration.” 46 See also Franzius, p. 544, footnote 11; Frenz, p. 2. Sec. 47 Code of Administrative Court Procedure constitutes an exception (standing restricted to rights combined with unlimited judicial review). 47 More generally Gärditz, p. 9; Franzius, p. 548. 48 Cf. also Frenz, p. 1 et seq.; Gassner, p. 551 et seq.; disagreeing and supporting the approach of the FAC Gellermann, p. 1342; see also Schlacke (2014), p. 13 et seq., 16, who reveals systemic contradictions, but nevertheless agrees with the FAC. 49 See more generally Gärditz, p. 10. 50 Case C-240/09, Slovak brown bear, paras. 51 et seq. See also FAC/BVerwG 7 C 21.12, para. 36; Gärditz, p. 6; Franzius, p. 545; Schink, p. 629. 51 Schink, p. 629 et seq. Cf. also the criticism of Ekardt, p. 396. Regarding the extensive interpretation in the context of directives see Frenz, p. 1, footnote 8. 52 Bundestags-Drucksache 16/2497, p. 46. 53 In this regard it is striking that Germany refers to the FAC’s judgment before the ACCC to prove compliance: ECE/MP.PP/C.1/2014/8, 4 June 2014, paras 58, 91, 97. However, in the

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Secondly, granting environmental organisations a right to require the drawing up of a sufficient air quality plan under sec. 47 (1) of the Federal Control of Pollution Act cannot be regarded as a further development of the concept of subjective rights, as it overrides the concept itself. The limits to further development of subjective rights granting standing in accordance with sec. 42 (2) second part of the Code of Administrative Court Procedure are exceeded if personal interests can no more be individualised and the distinction from exceptional standing under the first part of this paragraph becomes obsolete.54 As the decision on standing rests with the legislature, it is therefore also the legislature who has to implement art. 9 (3) AC.55 If the legislature wants to retain the long-established concept of standing, the enactment of a further statutory exception in the sense of sec. 42 (2) first part of the Code of Administrative Court Procedure is the appropriate choice. Whether, in general, the German concept of standing can survive in the future – given a growing pressure of international and especially EU law – is another question, of course.56 The FAC’s judgment thus clashes with the principle of separation of powers. Courts cannot take over legislative competences assigned to parliament due to its high democratic legitimacy. Courts are established to decide legal disputes at hand but not to take fundamental decisions in place of the elected and politically responsible members of parliament.57 Instead of creating law where the legislature has consciously rejected to do so, national courts can only refer questions concerning the compatibility with EU law to the CJEU (art. 267 TFEU).58 On the EU level, the European Commission can introduce an infringement procedure (art. 258 TFEU; see also art. 259 TFEU). Additionally, the ACCC was established in accordance with art. 15 AC to issue findings and recommendations concerning the non-compliance of Parties to the Convention. Thus, the control of the legislative branch is ensured sufficiently.

face of possible findings of non-compliance such a strategy seems rather reasonable and may be classified as defensive tactics. 54 For a different view see Franzius, p. 543 et seq., who denies that the limits of further developing the law have been exceeded. 55 Cf. also Gärditz, p. 5 et seq.; Schlacke (2011), p. 316; Schlacke (2014), p. 16 et seq.; Gassner, p. 552 et seq., who refers to art. 9 (2) AC. With regard to the CJEU’s judgment in case C-240/09, Slovak brown bear, see Franzius, p. 545. 56 For a discussion on an expansion of the required changes in environmental law subject to the Aarhus Convention (1) to environmental law in general and (2) beyond that see Schwerdtfeger (2010), p. 292 – 301, 316 – 320. 57 Cf. Franzius, p. 549. 58 See FAC/BVerwG 7 C 21.12, para. 22; Gassner, p. 553, with regard to art. 9 (2) AC.

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V. Third Step: the Aarhus Compliance Committee 1. The German Case On 20 December 2013, the ACCC adopted findings and recommendations concerning Germany’s compliance with art. 9 (2) and (3) AC, that were confirmed by the Meeting of Parties at its fifth session, on 30 June/1 July 2014.59 It finds, inter alia,60 that Germany fails to comply with art. 9 (3) AC “by not ensuring standing of environmental NGOs in many of its sectoral laws to challenge acts or omissions of public authorities or private persons which contravene provisions of national law relating to the environment”.61 The Committee explicitly deals with the FAC’s judgment referred to by Germany to demonstrate the conformity of German law with art. 9 (3) AC.62 However, according to the Committee, the judgment does not suffice to prevent an incompatibility: As the FAC broadened the interpretation of rights just in order to ensure the correct implementation of an EU directive, the judgment does not imply that the same interpretation will be applied to those areas of national law not covered by EU law.63 Nor does the judgment guarantee that this interpretation will be widely followed in future decisions.64 These arguments point to the aspect of legal certainty that can be added to the principle of separation of powers. In line with this paper, the Committee finds that legislative changes are necessary in Germany to comply with art. 9 (3) AC.65 2. The ‘General Picture’ Approach What is especially interesting with regard to the growing influence of the judicial branch in the implementation of international and EU law is the ‘general picture’ approach taken by the ACCC66 : 59 Findings and recommendations with regard to communication ACCC/C/2008/31 concerning compliance by Germany adopted by the Compliance Committee on 20 December 2013, ECE/MP.PP/C.1/2014/8, 4 June 2014; Decision V/9 h on compliance by Germany adopted by the Meeting of Parties to the Convention at its fifth session, ECE/MP.PP/2014/2/ Add.1, 14 October 2014. 60 The Committee also finds that “[b]y imposing a requirement that an environmental NGO, to be able to file an appeal under the (Environmental Appeals Act), must assert that the challenged decision contravenes a legal provision ‘serving the environment’, the Party concerned fails to comply with article 9, paragraph 2, of the Convention in this respect”: ECE/ MP.PP/C.1/2014/8, 4 June 2014, paras. 76 – 80, 102 et seq. 61 ECE/MP.PP/C.1/2014/8, 4 June 2014, paras. 91 – 100, 102 et seq. 62 ECE/MP.PP/C.1/2014/8, 4 June 2014, paras. 58, 91, 97 – 99. 63 ECE/MP.PP/C.1/2014/8, 4 June 2014, para. 98. Cf. also Bunge, p. 9. 64 ECE/MP.PP/C.1/2014/8, 4 June 2014, para. 98. 65 ECE/MP.PP/C.1/2014/8, 4 June 2014, paras. 98, 103. 66 For an in-depth analysis of this approach see The German Criteria for Access to Justice under the Scrutiny of the Aarhus Convention Compliance Committee and of the Court of

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“[w]hen evaluating compliance with art. 9 of the Convention, the Committee pays attention to the general picture regarding access to justice in the Party concerned, […] The ‘general picture’ includes both the legislative framework of the Party concerned concerning access to justice in environmental matters, and its application in practice by the courts […].”67 “Where the wording of national legislation appears to contradict the requirements of the Convention, the Committee still considers the case law submitted to it in order to determine whether the line of interpretation by courts or other national authorities nevertheless meets the requirements of the Convention. Under such circumstances, the Committee may conclude that the Party concerned does not fail to comply with the Convention notwithstanding the wording of the national legislation.“68 Applied not only to common law countries but also to civil law systems like Germany, the ‘general picture’ approach signifies a considerable upgrading of the national judicial branch. It seems to go further than the CJEU’s case law.69 The approach may offer a wrong incentive for the legislature not to implement the Aarhus Convention accurately and encourage the judicial branch to take over control. It can thus be regarded as a further risk to the separation of powers. Furthermore, the findings and recommendations regarding Germany reveal a threat to legal certainty as an additional disadvantage.

VI. Conclusion 1. Underlying Reasons The German implementation of art. 9 (3) AC can be taken as an example of a serious shift of powers from the legislative to the judicial branch, which is illustrated by the judgment of the German FAC of 5 September 2013. However, it is not adequate to solely criticise this phenomenon. A constructive analysis should also ask for the reasons underlying a questionable development. The judgment of the CJEU in the Slovak brown bear case and the recent judgment of the German FAC ultimately contribute to the realization of one of the major objectives of the AC: wide access to justice in environmental matters. The Compliance Committee’s ‘general picture’ approach may as the overall result also foster implementation by strengthening the judicial branch – even if it weakens the legislature as Justice of the European Union: is there Room for Similar Proceedings against Italy? (Elena Fasoli), in this volume, p. 185. 67 ECE/MP.PP/C.1/2014/8, 4 June 2014, para. 64. 68 ECE/MP.PP/C.1/2014/8, 4 June 2014, para. 67. 69 See the comparative remarks of Fasoli, in this volume, p. 185. There may, however, be a trend in the CJEU’s case law to ascribe more importance to the application and interpretation of national law by the courts if the statutory law is insufficient (regarded separately): See case C-530/11, European Commission v United Kingdom of Great Britain and Northern Ireland, paras. 33 et seq. (though regarding a common law system); case C-72/12, Altrip, paras 52 – 54.

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the primary institution in charge of implementation. This shift of powers to the judicial branch may be regarded as a reaction to existing deficiencies caused by an inactive legislature. It thus serves the effective enforcement of the AC. This result and a possible corresponding motivation underlying the decisions are commendable in principle. However, a thorough analysis discloses different roles of the CJEU, the ACCC and the German FAC, which have to be considered for a conclusive evaluation of the overall picture. 2. The Protagonists’ Roles The decision of the CJEU in the Slovak brown bear case has a two-fold dimension. Firstly, the Court itself plays a proactive role vis-à-vis the Parties to the Convention. It exercises its jurisdiction – which has been strongly called into question70 – to give a meaning to art. 9 (3) AC, that bypasses the original intention of the Parties to the Convention. The CJEU chooses a dynamic interpretation that affects the content of the Parties’ agreement. Secondly, the Court requires an active involvement of the national judicial branch to realise the implementation of art. 9 (3) AC as interpreted by the CJEU itself. In this regard, the ACCC’s “general picture” approach seems to go even further, taking into consideration national case law where the wording of legislation appears to contradict the requirements of the Convention. Despite the non-judicial character of the Committee71, its findings and recommendations have at least a strong persuasive power as it has been established by the Parties to interpret the Convention. Both dimensions continue to have an effect on the national level: the procedural aspect makes the national court – the German FAC in the case at hand – find a legal construction to realise the result prescribed by the CJEU and/or the Committee. Thus, whereas the CJEU and the Committee control the result and the methods of implementation, the FAC solely controls its methods. Consequently, even if it is highly recommendable that the German legislature takes the wheel again, it can only counter the shift of powers to the judicial branch on the national level and at the same time conform to art. 9 (3) AC as interpreted by the CJEU and the Committee. 3. Enforcement of the Convention As regards the effective enforcement of the AC, the Convention’s character as a so-called mixed agreement brings the CJEU into the arena. Due to the binding character of its decisions, the Court strengthens the enforcement of the AC as compared to

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See e. g. AG Sharpston, opinion, 15 July 2010, C-240/09, Slovak brown bear, paras. 58 – 81; Schink, p. 625 et seq.; Berkemann, p. 1139 et seq. Affirmative Schlacke (2011), p. 312 – 315. 71 Cf. art. 15 AC.

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‘regular’ international treaties concluded (only) by nation states.72 Beyond that, the CJEU also shapes the object of implementation: the content of the Convention. In contrast to the CJEU, the Committee is a non-judicial institution. Nevertheless, it plays an additional role in the enforcement of the AC due to the persuasive power of its expert findings and recommendations. In its judgment of 5 September 2013, the FAC deals with the case law of the ACCC, as well.73 Although the Committee refers to the case law of the CJEU occasionally74 – and also postponed the case concerning Germany until the CJEU’s decision in the Trianel case had been delivered75 –, the Committee develops its findings and recommendations rather independently. Firstly, its ‘general picture’ approach is broader than the CJEU’s focus on national law. Secondly, whereas the CJEU’s standard of control is dominated by principles and acts of EU law, the Committee’s reasoning is restricted to the AC and in this regard may even be of stronger character. It is therefore convincing that the Committee did not deal with the content of the CJEU’s brown bear decision in its German case, as the CJEU had based its reasoning largely on the objective of effective judicial protection of the rights conferred by EU law76.77 It can be concluded that both the CJEU and the Compliance Committee contribute to the effective enforcement of the AC in a twofold way, which is recommendable in its result though questionable with regard to the national separation of powers. In this respect, the national courts are required to confine themselves to their judicial tasks, and the legislature has to exercise its responsibility for implementing international agreements. References Appel, Markus: Umweltverbände im Ferrari des deutschen Umweltrechtsschutzes – Anmerkung zur Trianel-Entscheidung des EuGH, Urt. v. 12. 5. 2011 – C-115/09, in: Natur und Recht, 2011, p. 414 et seq. Berkemann, Jörg: Der slowakische Braunbär im deutschen Prozessrecht – Eine Analyse von EuGHE 2011 I-1255, in: Deutsches Verwaltungsblatt, 2013, p. 1137 et seq. 72 For an analysis of the influence of enforcement institutions on implementation see The Implementation of the Aarhus Convention in Italy: a Strong ‘Vision’ and a Weak ‘Voice’ (Viviana Molaschi), in this volume, p. 103. 73 FAC/BVerwG 7 C 21.12, paras. 33 et seq., 48. 74 ECE/MP.PP/C.1/2014/8, 4 June 2014, paras. 68, 78 (footnote 24), 87 (footnote 25), 89. 75 ECE/MP.PP/C.1/2014/8, 4 June 2014, paras. 6 – 9. 76 Case C-240/09, Slovak brown bear, paras. 47 – 52. 77 Two possibly differing assessments may be added: (1) the Committee’s findings of noncompliance regarding the requirement to assert that the challenged decision violates legal provisions “serving the environment” (ECE/MP.PP/C.1/2014/8, 4 June 2014, para. 80) after the CJEU had not objected to this requirement in the Trianel case (though the referring court had not explicitly directed its question to this aspect, either); and (2) the Committee’s concerns about the lack of clarity of the German legal system regarding procedural errors (ECE/MP.PP/ C.1/2014/8, 4 June 2014, para. 90) after the CJEU’s Altrip decision.

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Bunge, Thomas: Zur Klagebefugnis anerkannter Umweltverbände. Das Urteil des Bundesverwaltungsgerichts vom 5. September 2013, in: Zeitschrift für Umweltrecht, 2014, p. 3 et seq. Ekardt, Felix: Nach dem Altrip-Urteil: Von der Klagebefugnis zu Verfahrensfehlern, Abwägungsfehlern und Individualklage, in: Neue Zeitschrift für Verwaltungsrecht, 2014, p. 393 et seq. Eliantonio, Mariolina/Backes, Chris/van Rhee, Remco/Spronken, Taru/Berlee, Anna: Standing up for Your Right(s) in Europe. A Comparative Study on Legal Standing (Locus Standi) before the EU and Member States’ Courts, 2013. Franzius, Claudio: Möglichkeiten und Grenzen der richterlichen Rechtsfortbildung zur Bestimmung der Klagebefugnis im Umweltrecht, in: Deutsches Verwaltungsblatt, 2014, p. 543 et seq. Frenz, Walter: Notwendige Unterscheidung von Umweltverbands- und Individualklage – Besprechung des BVerwG-Urteils vom 5. 9. 2013 (7 C 21.12), in: Umwelt- und Planungsrecht, 2014, p. 1 et seq. Gärditz, Klaus Ferdinand: Verwaltungsgerichtlicher Rechtsschutz im Umweltrecht, in: Neue Zeitschrift für Verwaltungsrecht, 2014, p. 1 et seq. Gassner, Erich: Zur gerichtlichen Geltendmachung von EU-Rechtsvorschriften, die dem Umweltschutz dienen, in: Deutsches Verwaltungsblatt, 2014, p. 551 et seq. Gellermann, Martin: Verbandsklagen im Umweltrecht – aktueller Stand, Perspektiven und praktische Probleme, in: Deutsches Verwaltungsblatt, 2013, p. 1341 et seq. Schink, Alexander: Der slowakische Braunbär und der deutsche Verwaltungsprozess, in: Die öffentliche Verwaltung, 2012, p. 622 et seq. Schlacke, Sabine: Stärkung überindividuellen Rechtsschutzes zur Durchsetzung des Umweltrechts. Zugleich Anmerkung zu EuGH, Urteil vom 8. März 2011 – Rs. C-240/09, in: Zeitschrift für Umweltrecht, 2011, p. 312 et seq. – Zur fortschreitenden Europäisierung des (Umwelt-)Rechtsschutzes. Schutznormdoktrin und Verfahrensfehlerlehre erneut unter Anpassungsdruck, in: Neue Zeitschrift für Verwaltungsrecht, 2014, p. 11 et seq. Schwerdtfeger, Angela: Der deutsche Verwaltungsrechtsschutz unter dem Einfluss der AarhusKonvention, Zugleich ein Beitrag zur Fortentwicklung der subjektiven öffentlichen Rechte unter besonderer Berücksichtigung des Gemeinschaftsrechts, 2010. – Erweiterte Klagerechte für Umweltverbände – Anmerkung zum Urteil des EuGH v. 12. 5. 2011 in der Rechtssache Trianel, in: Europarecht, 2012, p. 80 et seq. Wegener, Bernhard W.: Die europäische Umweltverbandsklage, in: Zeitschrift für Umweltrecht, 2011, p. 363 et seq. Zschiesche, Michael: Die Aarhus-Konvention – mehr Bürgerbeteiligung durch umweltrechtliche Standards?, in: Zeitschrift für Umweltrecht, 2001, p. 177 et seq. – The Aarhus Convention – More Citizens’ Participation?, in: elni-review, 2002, p. 21 et seq.

The German Criteria for Access to Justice Under the Scrutiny of the Aarhus Convention Compliance Committee and of the Court of Justice of the European Union: Is There Room for Similar Proceedings Against Italy? By Elena Fasoli1 Abstract La normativa tedesca in tema di legittimazione processuale delle associazioni ambientaliste non è pienamente in linea con gli obblighi internazionali sanciti dalla Convenzione di Aarhus, nonché con i corrispondenti obblighi comunitari. Il Comitato di Compliance istituito dalla Convenzione ha di recente dichiarato non legittimo il requisito secondo cui le associazioni ambientaliste possono impugnare solo decisioni che sono in contrasto con regole che proteggono l’ambiente. Inoltre, la Commissione UE ha promosso una procedura di infrazione nei confronti della Germania in riferimento, tra gli altri, al criterio secondo cui è possibile impugnare una decisione illegittima soltanto qualora la disposizione violata sia diretta a tutelare un interesse individuale (c.d. Schutznormtheorie). Il presente studio si interroga sulla possibilità che simili procedure siano rivolte nei confronti del sistema giuridico italiano. A livello giurisprudenziale esistono, infatti, orientamenti interpretativi divergenti, sia in relazione alla legittimazione processuale delle associazioni ambientaliste a carattere locale, sia in riferimento alla nozione di “interesse ambientale”.

I. Introduction The present analysis focuses on the criteria for access to justice of environmental associations under the Italian and the German legal systems. It aims at verifying whether these criteria comply with the obligations under the Aarhus Convention (AC2) and the European Union (EU) legislation implementing it.3 1

Research Fellow at Queen Mary University of London ([email protected]). Member of the Aarhus Convention Compliance Committee. The views set out in this article are exclusively those of the Author expressed in her personal capacity and do not necessarily reflect the views of the Committee. 2 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998, in force 30 October 2001) 2161 UNTS 447. In general, see Pallemaerts. 3 As far as Germany is concerned, the analysis will focus on art. 9 (2) AC (which is linked to art. 6 AC granting rights to the “public concerned” to participate in permitting procedures for specific activities listed in Annex I of the Convention) and on art. 10a Directive 2003/35/

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The German criteria have been subject to parallel procedures before the Court of Justice of the European Union (CJEU),4 on the one hand, and before the Aarhus Convention Compliance Committee (ACCC),5 on the other. The outcomes of these procedures will be analysed in order to assess whether there could be room for similar actions against Italy.

II. The German Criteria Before the ACCC and the CJEU: a Comparison with the Italian Legal System In the German legal system the rights of environmental associations to have access to review procedures relating to public participation under art 6 AC are contained in the Environmental Appeals Act (EAA6) and in the Rules on Administrative Court Procedures.7 Sec. 2 (1) EAA regulates the criteria for access to courts: “without having to assert that their own rights have been violated, the environmental associations can file an appeal against a decision8 – or the failure to take a decision – provided that a) they assert that the decision/omission violates statutory provisions serving the environment, [that establish individual rights] and that could be of importance for the decision; b) assert that the promotion of the objectives of environmental protection in accordance with their field of activity as defined in their bylaws is affected by the decision/omission; c) demonstrate that they were entitled to participate in the process that led to the decision/omission and that effectively participated according to applicable law (or that they were refused the right to participate)”. In addition, sec. 3 EAA EC of the European Parliament and of the Council on public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/ EC (Directive 85/337, as amended), Official Journal of the European Union L 156/17, 25. 6. 2003. As far as Italy is concerned, the analysis will refer to both art. 9 (2) AC and 9 (3) AC. The latter refers to acts and decisions “in general” (namely, non-necessarily subject to a participation procedure by the “public concerned”) and it has not been fully transposed into EU legislation yet. 4 In general see Wenneras, p. 171 et seq. 5 In general see Pitea, p. 221 et seq. 6 Act Concerning Supplemental Provisions on Appeals in Environmental Matters Pursuant to EC Directive 2003/35/EC of 7 December 2006 (Bundesgesetzblatt (BGBl.) I, 2816 et seq.), as amended, sec. 1 – 4. 7 Code of Administrative Court Procedure of 19 March 1991 (BGBl. I, 686, et seq.), as amended. Sec. 42 states that “a claim can be made to request that an administrative act be quashed (Anfechtungsklage) or, where the administrative act had been refused or failed to be performed [by the public authority], that it be performed (Verpflichtungsklage); unless otherwise provided in other legislative provisions, a claim is only admissible where the claimant asserts that the administrative act, its refusal or omission has impaired the claimant’s own rights”. 8 The EAA applies to appeals against decisions concerning the admissibility of projects for which there may be an obligation to conduct an environmental impact assessment; to procedures involving public participation in order to obtain specific authorizations for installations and against decisions under the Environmental Damage Act (sec. 1 EAA).

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provides for additional requirements for the recognition of the associations related to the length of time they have been created and have been active in the field and to the guarantees of proper performance of their duties with reference to the type and scope of their previous activities, their effectiveness and membership. Interestingly, in December 2008 these legal requirements have been the subject of a communication submitted to the ACCC by the environmental association Client Earth supported by Nature and Biodiversity Conservation Union (the Communicant) as they were considered in contrast with, among the other provisions, art. 9 (2) AC.9 However, in April 2009 this proceeding was suspended as a similar case was initiated before the CJEU.10 In the context of a reference for a preliminary ruling, the Court was asked to scrutinize the compatibility of the so-called Schutznormtheorie – under which complainants can only invoke legal provisions that are designed “to establish individual rights” according to a strict right-based approach – with the European legislation.11 On this point it has to be noted that the Italian legal system relies by contrast on an interest-based approach, where recognised environmental associations representing interests that could be prejudiced by the decision can activate the judicial procedure.12 Be that as it may, in the landmark Trianel ruling the CJEU stated that the decision not to allow an environmental association to bring a development permit appeal – that alleged a violation of a rule flowing from EU environmental law – solely on the 9

Findings and Recommendations with Regard to Communication ACCC/C/2008/31 (ECE/MP.PP/C.1/2014/8) concerning Compliance by Germany, adopted by the Compliance Committee on 20 December 2013, available at: http://www.unece.org/env/pp/pubcom.html (last visited in August 2014). 10 Case C-115/09, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eV vs. Bezirksregierung Arnsberg (Trianel). The ACCC, as a non-judicial body, decided to give priority (see para. 21 of Decision I/7 Review of Compliance, ECE/ MP.PP/2/Add.8, 2 April 2004) to the procedure before the CJEU dealing with the interpretation, among others, of a provision, such as art. 9 (2) AC, in regard to which the EU had exercised its competence (through art. 10a Directive 85/337). See also, supra note 3; Pitea and Tanzi in: Pallemaerts p. 367 et seq. 11 The Trianel case concerned a permit for the construction and operation of a coal-fired power station in Lünen, Germany, eight kilometres away from several protected Habitat areas. The local authorities granted a preliminary decision stating that there were no legal objections to the project and a partial permit was granted. These measures were challenged by the Nordrhein-Westfalen branch of “Friends of the Earth”, an environmental association recognised under German national law. The association claimed that the measures violated art. 6 (3) Habitats Directive because the environmental impact assessment of the project did not show that it was unlikely that the power station would have a significant effect on the protected nature areas. However, the association did not have legal standing before the German administrative court on the basis of the domestic law. See Implementation and the Separation of Powers (Angela Schwerdtfeger), in this volume, p. 169. See also Mangold, p. 223 et seq. 12 See infra para. III. See also Eliantonio et al.

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ground that the rule in question was meant to protect only the public interest and not an individual one, was not in line with the objective of “wide access to justice” laid down in the European as well as in the international obligations.13 As a result, the text of the EAA was amended and the environmental associations were allowed to request review also with respect to legal provisions that did not establish individual rights.14 In the aftermath of the pronouncement in the Trianel ruling the ACCC resumed the proceeding and addressed the allegations focussing on the other criteria for access to justice contained in the EAA legislation. The legal reasoning of the ACCC is particularly interesting not only in relation to a possible assessment of non-compliance by Italy, but also because it describes on what basis the Committee grounds its findings. 1. The Requirement that the Decision has to Affect the Objectives of Environmental Protection as Defined in the Statute of the Association The ACCC firstly devoted its attention to the German requirement to the effect that the challenged decision adopted under art. 6 AC has to affect the promotion of the objectives of environmental protection in accordance with the field of activity of the association as defined in its statute.15 In other words, environmental associations have to demonstrate that their interests are affected in a specific case. It can also be mentioned that the Italian legal system applies a softer approach to this issue. Under the 1986 Law on the Establishment of the Ministry of the Environment (1986 Law16), the environmental associations can be officially recognised by the Ministry of the Environment (MoE) and be granted access to justice in order to challenge unlawful administrative decisions “in general” – i. e. not necessarily subject to a public participation procedure17 – if they pursue (not occasionally) objectives of environmental protection described in their statute.18 It is not required that the ap13

On the Trianel case see also Müller, p. 505 et seq. and Brakeland, p. 8 – 9. The amendment to sec. 2 (1) EAA (see above the text deleted in square brackets) has been adopted in January 2013 and is in force since April 2013. 15 A similar criterion is contained in the Regulation of the European Parliament and of the Council on the application of the Provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community Institutions and Bodies (Official Journal of the European Union L 264/ 13 25. 9. 2006). Art. 11 states that “[a] non-governmental organisation shall be entitled to make a request for internal review provided that: (d) the subject matter in respect of which the request for internal review is made is covered by its objective and activities”. 16 Gazzetta Ufficiale no. 162 (15. 7. 1986). 17 See supra note 3. 18 See also infra para. III. The system introduced by the 1986 Law has remained unchanged after the entry into force of the Environmental Code (Legislative Decree 152/2006, as amended). 14

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pealed decisions fall into the specific field of activity of the associations.19 This is also confirmed by judicial practice.20 Be that as it may, on this issue, Germany, before the ACCC, argued that the criterion contained in its legislation was a legitimate “requirement under national law” (art. 2 (5) AC) and that it had been adopted in order to grant a proper representation of public interest (for example, an environmental association specializing in coastal conservation could not be adequately competent to handle a case dealing with an inland disposal installation).21 The ACCC found that “the criterion in the law of the Party concerned that environmental NGOs must demonstrate that their objectives are affected by the challenged decision amounts to a “requirement under national law”, as set out in art. 2 (5) AC. The criterion is sufficiently clear and does not seem to put excessive burden on environmental NGOs, since this can be easily proven by the objectives stated in its bylaws. Moreover, NGOs have the possibility to (re-)formulate their objectives from time to time as they see fit. No information was submitted to the Committee to show that the authorities and courts of the Party concerned use this criterion in such a manner so as to effectively bar environmental NGOs from access to justice”.22 It follows from the foregoing, that the application of this requirement, even in its stricter version as applied by Germany, is not in contrast with the AC. 2. The Requirement that Review has to be Granted for the Substantive and Procedural Legality of the Decision The second allegation brought before the ACCC referred to the Convention’s requirement for the review of both the substantive and the procedural legality of a decision subject to a public participation procedure. The communicant alleged that Germany did not clearly transpose into its national law the possibility to request both these types of reviews. It has to be noted that this allegation could potentially be referred to the Italian legislation as well which does not contain any specification on this.23

19 Environmental associations […] are recognized on the basis of their objectives of environmental protection (art. 13.1 of 1986 Law). 20 See, e. g., Council of State, section IV, 19 June 2014, no. 3111 where the association was not granted access to justice in so far as its statutory objectives were not specifically dedicated to the protection of the environment, as they were mainly objectives of political nature. 21 ACCC/C/2008/31, para. 45. 22 Ibid., para. 72. 23 The 1986 Law only provides that the environmental associations can challenge unlawful decisions before the administrative courts (art. 18.5).

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The ACCC stated that as long as it is possible in practice for members of the “public concerned” to challenge both the substantive and the procedural legality of a decision, State Parties are not obliged to transpose the exact wording of the Convention.24 Because the Communicant did not ground its allegations with sufficient case-law, the Committee did not find Germany in non-compliance with the Convention. An important consideration has to be drawn from this statement. When the ACCC evaluates the non-compliance of a State with the Convention, it looks at the “general picture” of its legal system, which includes both its legislative framework and the application of the legislation by the national courts.25 3. The Requirement that the Challenged Decision Violates Provisions Serving the Environment The ACCC also addressed the requirement under German law that the environmental associations need to demonstrate that the challenged decision “contravenes legal provisions serving the environment”. This specification contained in the German EAA echoes the Italian jurisprudential debate as to the nature of the “interest” given to environmental associations in order to challenge decisions adopted by public authorities (not necessarily subject to a public participation procedure).26 First of all, it has to be mentioned that according to settled Italian case-law the environmental associations are not granted standing to challenge acts or decisions if these have no impact whatsoever on the environment.27 Outside these cases, administrative courts, especially in the past, tended to interpret the notion of ‘environmental interest’ in a narrow way. Standing was granted to environmental associations only to challenge acts and decisions that were directly in breach of provisions relating to the environment. Town planning and building deci24

ACCC/C/2008/31, para. 75. Ibid., para. 64. See also Findings and Recommendations on Communication ACCC/C/ 2005/11 regarding Belgium (ECE/MP.PP/C.1/2006/4/Add.2), para. 37. 26 In legal doctrine see Tulumello, p. 59 et seq.; Leonardi, p. 3 et seq. and Maellaro, p. 1492 et seq. See also Participatory Rights and the Notion of Interest in Environmental Decisionmaking: a Theoretical Sketch and Some International Legal Considerations (Paolo Turrini), in this volume, p. 57. 27 By way of example, one could refer to the case of an environmental association wanting to challenge some parts of a construction permit (issued by a local Municipality) that are purely organisational and that refer to the method of allocation of the works in accordance with the national rules on procurements. See Council of State, section IV, 16 December 2003, no. 8234 and Council of State, section IV, 21 August 2013, no. 4233. For the distinction between “environmental interest” and “interests related to the organisation of the territory” see Regional Administrative Tribunal (TAR), Lombardy, Brescia, 18 March 2004, no. 226; TAR Veneto, section I, 19 January 2006, no. 97 and TAR Sicily, Catania, section I, 3 December 2003, no. 1979. 25

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sions were, therefore, excluded from the review by environmental associations because they were not considered as proper “environmental acts”.28 More recent case-law shows instead that the administrative courts can also adopt a wider interpretation, more in line with the international obligations.29 Review is allowed to environmental associations in order to challenge town planning and building decisions (like any other act which is not immediately of value to the environment)30, provided that it can be demonstrated that an enhanced protection of the environment derives from their (total or partial) annulment.31 On this issue the ACCC stated that: “[w]hile the Convention relates to environmental matters, there may be legal provisions that do not promote protection of the environment, which can be violated when a decision under article 6 of the Convention is adopted, for instance, provisions concerning conditions for building and construction, economic aspects of investments, trade, finance, public procurement rules etc. Therefore, review procedures according to article 9, paragraph 2, of the Convention should not be restricted to alleged violations of national law ‘serving the environment’, ‘relating to the environment’ or ‘promoting the protection of the environment’, as there is no legal basis for such limitation in the Convention”.32 Furthermore, the Committee specified that the existence of judicial practice at the national level could justify not only a non-literal transposition of the AC, but also a clear contradiction with the Convention. In fact “[w]hen there is a clear contradiction between the provisions of national law and the requirements of the Convention, as in the present case, it is for the Party concerned to bring evidence to show that its courts

28 E.g. Council of State, section IV, 16 December 2003, no. 8234 and Council of State, section IV, 9 November 2004, no. 7246. 29 The Aarhus Convention Implementation Guide, dealing with the definition of “environmental information”, under art. 2 (3), specifies that “the activities or measures do not need to be a part of some category of decision-making labelled ‘environmental’. The test is whether the activities or measures may have an effect on the environment. So, for example, information related to planning in transport or tourism would in most cases be covered by this definition”, Ebbesson et al., p. 53. 30 “Atti aventi valenza strettamente ambientale”, Council of State, Section VI, 23 December 2013, no. 6223. 31 E.g. Council of State, section IV, 9 October 2002, no. 5365; Council of State, section IV, 3 September 2005, no. 5205; Council of State, section IV, 21 November 2005, no. 6467; Council of State, section IV, 2 October 2006, no. 5760 and TAR Cagliari, section II, 16 June 2009, no. 987; Council of State, section IV, 9 January 2014, no. 36. As it has been stated by the Council of State: “there is no need to spend a lot of words to be convinced of the close relationship that increasingly runs between town planning and the environment and of how often the contents of planning decisions are inextricably intertwined with those of environmental protection, if only for the fact that the territory, seen in all its forms, is a fundamental good that is part of the environment itself”, Council of State, section IV, 11 November 2011, no. 5986. 32 ACCC/C/2008/31, para. 78.

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interpret those provisions in conformity with the Convention. […] However, this has not been shown by the Party concerned”.33 In light of the above, the States (including Germany and Italy) are required by the AC to not limit the scope of the arguments that the applicants can use to challenge the decisions. In the case under consideration Germany, according to the ACCC, did not provide elements to show that-notwithstanding the provisions of the EAA- its courts were interpreting correctly the notion of “serving the environment”. Therefore, the Committee found that the criterion contained in the EAAwas not in line with art. 9 (2) AC because it narrowed down the range of administrative decisions challengeable by the public concerned. The Committee recommended Germany to take all necessary legislative, regulatory and administrative measures and practical arrangements to restore compliance.34 One may wonder what the findings of the Committee would be should a similar allegation be brought against Italy.35 Relying on the judicial practice that widened the scope of arguments that the environmental associations can use in order to challenge unlawful decisions (even when they are not directly in breach of provisions relating to the environment), presumably the ACCC would not find Italy in non-compliance with the Convention. The existence of judicial practice that allows environmental associations to challenge acts such as town planning and building decisions could be considered sufficient to meet the requirements under the Convention. At the same time, the Committee would presumably raise concerns about the existence of legal practice to the contrary (that grants standing to environmental associations only to challenge acts and decisions that are directly in breach of provisions relating to the environment) and would recommend Italy to introduce clear provisions in its national legislation to this effect. It has to be recalled in fact that State Parties are under an obligation to transpose correctly the Convention primarily through a clear, transparent and consistent legal framework.36 One could also consider the outcome of an infringement procedure brought before the CJEU against Italy. The claim could address the national case-law dealing with the possibility for the public concerned to challenge decisions that are subject to a public participation procedure under art. 10 (2) Directive 85/337/EEC, as amended.37

33

Ibid., paras. 78 – 79. See Decision V/9 h concerning compliance by Germany with its obligations under the Convention adopted by the Fifth Meeting of the Parties, ECE/MP.PP/2014/CRP.4. 35 In that case the communication could theoretically refer to both art. 9 (2) AC and 9 (3) AC. 36 See art. 3 (1) AC and communication ACCC/C/2006/17 (ECE/MP.PP/C.1/2008/5Add. 10), concerning the European Union, para. 58. 37 E.g. TAR, Milan, Lombardy, section II, 22 October 2013 dealing with the challenge of a construction permit subject to a Strategic Environmental Assessment Procedure. See supra note 3. 34

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It has to be noted that according to settled CJEU case-law the transposition of directives cannot be made through judicial practice unless this achieves the clarity and precision needed to meet the requirements of legal certainty.38 Therefore, it could be argued that the fact of the existence of an interpretative debate between the national Italian courts would prevent the establishing of a clear and predictable legal context, so that Italy would not be considered in line with its obligations under the Directive 85/337/EEC. Alternatively, it could be said that thanks to the majority and more recent judgments which interpret the concept of “environmental interest” in a wider sense, the risks for environmental associations of not being granted a wide access to justice are effectively reduced to a minimum. It could still remain doubtful, though, whether the CJEU would consider this practice sufficiently certain, predictable and capable of meeting the obligations of the correct transposition of art. 10 (2) Directive 85/337/ EEC. 4. The Requirement that the Challenged Decision Violates Legal Provisions that Could Be of Importance for the Decision The ACCC finally turned to the requirement under German law according to which the challengeable decision has to violate “legal provisions that could be of importance for the decision”. According to the Communicant this requirement implies a limitation to challenge the procedural legality of a decision under the EAA. Germany by contrast, alleged that its administrative courts always consider the violation of procedural rights under art. 6 AC as a “fundamental error of procedure” in respect of which review is assured as required under art. 9 (2) AC. The Committee found that the German legal system lacked clarity and that the reference for a preliminary ruling to the CJEU in the Altrip case made by the German Federal Administrative Court (GFAC) constituted precisely a confirmation of this uncertainty. The GFAC had requested clarifications as to the correct implementation of the obligation to carry out a substantive and procedural review of a decision under art. 10 (2) Directive 85/337/EEC. The CJEU stated that this obligation had to be interpreted to the effect that also incorrect decisions (i. e. based only on incorrect, not absent, environmental impact assessment procedures) can be reviewed.39 Further38 By way of example, in Case C-530/11, European Commission v United Kingdom of Great Britain and Northern Ireland, the CJEU stated that “the transposition of a directive does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national law and a general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner” (para. 33). See also Case C-29/84, European Commission v Germany, para. 23; Case C-427/07, European Commission v Ireland, para. 94; more recently: Case C421/12, European Commission v Kingdom of Belgium, para. 46. 39 Case C-72/12, Gemeinde Altrip, Gebrüder Hört GbR, Willi Schneider vs. Land Rhineland-Pfalz, para. 38.

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more, the CJEU specified that the national courts could refuse to reverse a decision only if it is proven (although without putting the burden of proof on the applicant) that the decision would not have been different if the procedural error was absent.40 In the wake of the Altrip ruling, the ACCC clarified that it would not be compatible with the AC to allow members of the public to challenge the procedural legality of decisions under art. 6 AC in theory, but in practice systematically refusing the appeal on the grounds that the procedural errors at stake were not of importance for the decision (i. e. as the decision would not have been different even if the procedural error had not taken place).41 However, because the Communicant did not substantiate its allegation with sufficient case-law, the Committee could not find Germany in noncompliance with art. 9 (2) AC, while at the same time raising concerns about this lack of clarity in the legal system.42 It is noteworthy that the EU Commission, believing that Germany failed to adjust its procedural laws in line with both the Trianel and Altrip rulings, decided to refer the case to the CJEU43. Interestingly, in its submission to the Court the Commission made reference to the findings and recommendations of the ACCC.

III. The (Remaining) Criteria in Italian Law for Access to Justice under the (Possible) Scrutiny of the CJEU and/or the ACCC? Italy has not yet been addressed by CJEU actions or by ACCC communications on legal standing issues. This does not mean however that the Italian legal system can be considered totally exempt from criticism. First of all, doubts have been already raised with regard to the existence of a jurisprudential debate as to the type of decisions that environmental associations can challenge before the Italian administrative courts.44 In addition, another possible ground of criticism can be found in the list of requirements that the associations must satisfy in order to be officially recognised by the MoE and to be allowed to challenge unlawful administrative decisions in court.45 40

Ibid., para. 57. ACCC/C/2008/31, para. 83. 42 Ibid., paras 89 – 90. 43 Among the different claims, the Commission submitted that Germany “has infringed the obligation of sincere cooperation both in temporal and in substantive terms. It took more than 18 months to attempt to draw the appropriate conclusions from the judgment of the Court of Justice of 12 May 2011, C-115/09. In substantive terms, the rules adopted by the defendant are inadequate and contradict both the aforementioned case-law and the judgment of the Court of Justice in Altrip”. 44 See supra paragraph II.3. 45 Art. 18 (5) Law 1986. See also Montini, p. 391 et seq. 41

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The 1986 Law states that the associations, along with having democratic internal rules, pursuing objectives of environmental protection and demonstrating continuity of action, must have a nation-wide activity or reaching at least five regions (out of twenty).46 This geographical requirement (nation-wide activity or reaching at least five regions) discriminates against local associations and does not meet the obligations of the AC, nor those contained in the EU legislation implementing it. In fact, it is in contrast with art. 9 (2) AC, art. 10 (2) of Directive 85/337/EEC, along with art. 9 (3) AC, requiring Member States to give the public “wide access to justice” according to the spirit and objectives of the Convention and the Directive.47 This has also been confirmed by the ECJ48. Furthermore, this geographical requirement is in contrast with art. 3 (9) AC according to which the possibility to have access to justice in environmental matters should be provided without consideration as to where the legal person “has its registered seat or an effective centre of its activities”.49 However, this strict legislative criterion is mitigated by judicial practice. In fact, the majority of the more recent Italian case-law tends to confer legal standing not only to the national (and “officially” recognised) associations, but also, on a caseby-case basis, to the representatives of the local associations, not acting on behalf of the national organisation. The environmental associations are thus granted standing when they protect interests that could be prejudiced by the decisions once a concrete and stable connection with the territory is established.50 Should a communication be submitted to the ACCC alleging that Italy failed to comply with its obligations under art. 9 (2) AC and/or art. 9 (3) AC along with art. 3 (9) AC, it is believed that the Committee would positively consider the fact that the majority of the more recent judicial practice “mitigates” the contradiction 46

Art. 13 Law 1986. According to Darpö, p. 193: “the procedure should allow all kinds of environmental organizations defending an environmental interest to participate and have access to justice. From a democratic point of view, it is not acceptable that only the larger and more established NGOs are invited”. 48 Case C-263/08, Djurgården-Lilla Värtans Miljöskyddsförening vs Stockholms Kommun Genom Dess Marknämnd. See Fasoli, p. 337 et seq. 49 Goisis, p. 101 et seq. 50 E.g. Council of State, section IV, 15 September 1998, no. 1155; Council of State, section IV, 2 October 2006, no. 5760; Council of State, section III, 15 February 2012, no. 784; Council of State, section VI, 23 December 2013, no. 6223; Council of State, section IV, 21 August 2013, no. 4233; TAR Genova, Liguria, section I, 21 November 2013, no. 1404; Council of State, section IV, 19 June 2014, no. 3111. By contrast, especially in the past courts were adopting a more restrictive approach. E.g. Council of State, section VI, 16 July 1990, no. 728; Council of State, section VI, 14 October 1992, no. 756; Council of State, section IV, 14 April 2006, no. 2151; Council of State, section VI, 9 March 2010, no. 1403; Council of State, section IV, 16 June 2011, no. 3662; Council of State, section IV, 28 March 2011, no. 1876. 47

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between the national legislation and the AC. At the same time, the Committee would presumably invite Italy to amend its national legislation in order to make it clearer, more concise and transparent. On the other hand, it is doubtful whether the same flexibility would be applied in the context of an infringement procedure before the CJEU, where a strict legality principle operates, and where the transposition of directives, as a general rule, cannot be made through judicial practice.51 However, as stated above, an exception to this rule can be found when the national case-law is sufficiently precise and clear so that the persons concerned are put in a position to know exactly the extent of their rights. It is difficult to predict whether the existence of a conspicuous number of recent case-law, which effectively allow the representatives of local associations (not acting on behalf of the national ones) to go before the courts, could be considered sufficient to meet the requirements of clarity and precision necessary in order to be regarded as a valid implementation of the obligations arising e. g. from art. 10 (2) Directive 85/ 337/EEC. In fact, it has to be recalled that State practice to the contrary, although being less recent,52 still exists. Also, according to the more flexible judicial trend, standing has to be granted by the national judges on a case-by-case basis. Therefore, it cannot be excluded that the CJEU could consider that this legal context appears uncertain and could conclude that Italy did not fully complied with the requirements laid down by the above-mentioned Directive.

IV. Concluding Remarks Both the Italian and the German legal systems apply legislative criteria to grant access to justice to environmental associations that are not fully consistent with the obligations of the AC, nor the EU legislation implementing it. As far as Germany is concerned, the legislative requirement, not contradicted by judicial case-law, that associations must assert that the challenged decision violates legal provisions “serving the environment”, has been found by the ACCC in noncompliance with obligations under the AC. Furthermore, the criterion related to the need to establish that the association’s individual rights have been violated is currently under the scrutiny of the CJEU. The Italian criteria for access to justice of environmental associations can be criticized on two different grounds. The first refers to the limits put on the interpretation of the notion of “environmental interest”. The second relates to the requirement of the overly extensive territorial activity of the associations. 51 52

See supra note 38. See supra note 50.

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From the point of view of the analysis of the ACCC, these requirements would presumably be considered in line with the Convention as they are “in practice” mitigated by national case-law. It has to be recalled, however, that State Parties are under an obligation to transpose the Convention correctly through a clear, transparent and consistent legal framework. As a consequence, from a strict international law perspective, both Italy and Germany should still overcome the above-described inconsistencies primarily through amendments to their national legislation. This is valid even more so from the EU perspective, where only specific and express provisions of national law are considered, as a general rule, the valid implementation of the obligations arising from Directives. References Brakeland, Jean-François: Access to Justice in Environmental Matters – Developments at EU Level, 2013. Darpö, Jan: Environmental Justice Through Environmental Courts?, Lessons Learned from the Swedish Experience, in: Ebbesson, Jonas et al. (eds.): Environmental Law and Justice in Context, 2009, p. 176 et seq. Ebbesson, Jonas/Gaugitsch, Helmut/Jendros´ka, Jerzy/Marshall, Fiona/Stec, Stephen (eds.): The Aarhus Convention, an Implementation Guide, UNECE, 2nd edition, 2014. Eliantonio, Mariolina/Backes, Chris/van Rhee, Remco/Spronken, Taru/Berlee, Anna: Directorate-General for Internal Policies, Policy Department, Citizens’ Rights and Constitutional Affairs, Standing up for Your Right(s) in Europe, A Comparative Study on Legal Standing (Locus Standi) Before the EU and Member States’ Courts, 2012. Fasoli, Elena: Legal Standing of NGOs in Environmental Disputes in Europe, in: Boschiero, Nerina/Scovazzi, Tullio (eds.): International Courts and the Development of International Law, Essays in Honour of T. Treves, 2013, p. 337 et seq. Leonardi, Roberto: La legittimazione processuale delle associazioni ambientaliste, in: Rivista giuridica dell’edilizia, 2011, p. 3 et seq. Maellaro, Francesca Romana: La legittimazione al ricorso in materia urbanistica, in: Giurisprudenza di merito, 2012, p. 1492 et seq. Mangold, Anna Katharina: The Persistence of National Peculiarities: Translating Representative Environmental Action from Transnational into German Law, in: Indiana Journal of Global Legal Studies, 2014, p. 223 et seq. Montini, Massimiliano: Accesso alla giustizia per ricorsi ambientali, in: Francioni, Francesco/ Gestri, Marco/Ronzitti, Natalino/Scovazzi, Tullio (eds.): Accesso alla giustizia dell’individuo nel diritto internazionale e dell’Unione Europea, 2008, p. 391 et seq. Müller, Bilun: Access to the Courts of the Member States for NGOs in Environmental Matters under European Union Law, in: Journal of Environmental Law, 2011, p. 505 et seq. Okowa, Phoebe (ed.): Environmental Law and Justice in Context, 2009.

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Pallemaerts, Mark: The Aarhus Convention at Ten, Interactions and Tensions between Conventional International Law and EU Environmental Law, 2011. Pitea, Cesare: Procedures and Mechanisms for Review of Compliance under the 1998 Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, in: Treves, Tullio/Pineschi,, Laura/Tanzi, Attila/Pitea, Cesare/Ragni, Chiara/ Romanin Jacur, Francesca (eds.): Non-Compliance Procedures and Mechanisms for Review of Compliance and Access to Justice in Environmental Matters, 2009, p. 221 et seq. Tulumello, Giovanni: L’impugnabilità degli atti amministrativi in materia urbanistica, in: Rivista giuridica dell’edilizia, 2009, p. 59 et seq. Wenneras, Pål: The Enforcement of EC Environmental Law, 2007.

The Effect of the Aarhus Convention’s Right of Access to the Courts in Germany By Bilun Müller Abstract Nach Art. 9 Abs. 2 der Aarhus-Konvention wird den Mitgliedern der betroffenen Öffentlichkeit das Recht auf Zugang zu Gerichten gewährt, um behördliche Entscheidungen anzufechten, die gemäß Art. 6 Aarhus-Konvention unter Beteiligung der Öffentlichkeit getroffen werden sollen. Diese Vorschrift wurde in die geänderte Richtlinie 85/337/EG, nun Richtlinie 2011/92/EU über die Umweltverträglichkeitsprüfung (UVP-RL) und die geänderte Richtlinie 96/61/EG über die integrierte Vermeidung und Verhinderung von Umweltverschmutzung (IVU-RL), die heute durch die sog. Richtlinie 2010/75/EU über Industrieemissionen (IE-RL) ersetzt ist, in europäisches Recht übernommen. Der vorliegende Beitrag behandelt die Auswirkungen dieser internationalen und europäischen Vorschriften auf die in Deutschland geltenden Regelungen über den Zugang zu Gerichten. Dabei wird auf die Rechtslage vor und nach Abschluss der Aarhus-Konvention eingegangen. Auch die Relevanz von Verfahrensfehlern, die bei der Öffentlichkeitsbeteiligung geschehen können, auf die Genehmigungsentscheidung wird thematisiert. Deutschland hat 2006 mit Erlass des Umweltrechtsbehelfsgesetzes auf die neuen Regelungen reagiert. Mehreren Entscheidungen des Europäischen Gerichtshofs zufolge (insbesondere in den Rechtssachen C115/09 Trianel und C-72/12 Altrip) bestand und besteht aber noch Anpassungsbedarf im deutschen Recht, um Vereinbarkeit mit höherrangigem Recht herzustellen. Jüngst hat auch das Aarhus Convention Compliance Committee in der Sache ACCC/C/2008/31 festgestellt, dass die Rechtslage in Deutschland nicht den Anforderungen der Aarhus Konvention genügt. Die weiteren notwendigen Änderungen im deutschen Recht lassen weitreichende Auswirkungen auf künftig von den Verwaltungsgerichten zu entscheidende Einzelfälle erwarten. Der Beitrag diskutiert Lösungsvorschläge, wie das deutsche Recht kompatibel mit dem EU-Recht gestaltet werden kann.

I. Introduction When an artificial lake on the grounds of a former airport cannot be built, when a hunting licence cannot be granted, when a coal power plant cannot be authorised, when a dyke cannot be constructed, all due to successful judicial reviews initiated by environmental NGOs, and all this throughout Europe, then it is easy for an environmental lawyer to detect the influence of the Aarhus Convention (AC). It is remarkable that this international treaty has an effect on administrative decisions that have, usually, only local implications.

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This contribution aims at outlining the effect of the AC’s right to access to the courts in order to enforce the right to public participation, which is also granted by the AC, on the German legal system.

II. The AC’s Right to Access the Courts Concerning Public Participation While the AC grants the right to public participation in environmental decisionmaking procedures in art. 6 AC, art. 9 (2) AC is about access to the courts in order to enforce this right. Looking at art. 6 (3) AC, public participation can be identified as a two-step-approach.1 Firstly, state authorities have to inform the public concerned about the development they consider to authorise according to art. 6 (2) and (6) AC. Secondly, they have to give the public concerned an opportunity to make a statement regarding their concerns according to art. 6 (7) AC. This second step could be considered as the consultation as such; however, the right to comment would not be worth anything without a right to access the relevant information. Moreover, it should be borne in mind that according to art. 6 (4) AC each Party shall provide for early public participation, when all options are still open and effective public participation can take place. Public participation must be granted to the public concerned. Art. 2 (5) AC defines the public concerned as “the public affected or likely to be affected by, or having an interest in, the environmental decision-making”. At the same time, this provision expressly states that “for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest”. Access to the courts is regulated in art. 9 AC. Art. 9 (2) AC states that members of the public concerned must be granted access to the courts in order to initiate a “review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6”. Art. 9 (2) AC, however, only confers this right to the public concerned if they have either (a) a sufficient interest or, alternatively, (b) maintain the impairment of a right, where the administrative procedural law of a Party requires this as a precondition. In other words, the Parties have to grant individuals concerned and environmental NGOs access to judicial review with regard to the question as to whether art. 6 AC has been complied with. It is the combination of art. 6 and art. 9 (2) AC that makes the AC a forceful tool2, due to the fact that NGO’s can enforce their right to be included in the decision-making procedure. 1 2

Müller, p. 8. On EU law see Müller, p. 143 et seq.

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These provisions have been implemented in EU law by enacting the Public Participation Directive3, which amended the European Environmental Impact Assessment (EIA) Directive4, and the Integrated Pollution Prevention and Control (IPPC) Directive5 accordingly. The IPPC Directive has been replaced by the so called Industrial Emissions Directive (IED)6 in 2010.

III. The German History of Public Participation, the Opportunities for Judicial Review in this Context, the Importance of Procedural Flaws, and the European Influence In order to determine the effect of the AC, one must look at the situation prior to its entry into force and compare that to the current situation. 1. The History of Public Participation Public participation is not a new phenomenon in German law. On the contrary, it has been common practice since the 19th century to involve the public in administrative procedures prior to granting a licence, which may have a detrimental effect on the environment. For example, art. 26 et seq. Prussian Industrial Code (Allgemeine Gewerbeordnung für das Königreich Preußen) of 18457 contained provisions on the administrative procedure of granting authorisations to build industrial installations “that could by their location or their characteristics for the owners or inhabitants of the neighbouring properties or for the public in general cause significant detri3 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, 2003, OJ L 156/17, in the meantime amended by Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011, 2012, OJ L 26/1. 4 Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, 1985, OJ L 175/40, which has been replaced by Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (Codification), 2012, OJ L 26/1, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014, 2014, OJ L 124/1. 5 Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, 1996, OJ L 257/26. 6 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (Recast), 2010, OJ L 334/17, the so called Industrial Emissions Directive (IED). 7 Allgemeine Gewerbeordnung für das Königreich Preußen of 17 January 1845, Preußische Gesetzessammlung 1845, p. 41 et seq.

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ments, dangers or nuisances”. The provisions include a list of examples such as chemical plants. In this Prussian statute, it was foreseen already that all the concerns brought forward would have to be discussed in one meeting, the so-called Erörterungstermin, with the applicant for the licence, representatives of the public authority, and the persons who had commented.8 Until recently, such a discussion was a requirement before the authorisation could be granted.9 After the foundation of the Federal Republic of Germany in 1949, similar provisions prescribing public participation in decision-making procedures for the authorisation of big industrial installations were in force. In 1974, with the enactment of the Federal Control of Pollution Act (Bundesimmissionsschutzgesetz), public participation was made a prerequisite for even smaller industrial installations. Also, a lot of other more specific statutes included provisions on public participation,10 for example the federal Town and Country Planning Code (Baugesetzbuch) of 196011. Therefore, when the original European EIA Directive12 entered into force in 1987, public participation as a concept was not unknown in Germany. Still, implementation of the directive by the German EIA Act (Gesetz über die Umweltverträglichkeitsprüfung)13 of 1990 was delayed. Also, Germany did not have to introduce public participation as such due to art. 6 AC or the EU directives implementing the AC. However, formally, the Public Participation Directive was implemented in German law by the Public Participation Act (Öffentlichkeitsbeteiligungsgesetz)14 which slightly adjusted the wording of the already existing German provisions on public participation. In fact, Germany only had to introduce public participation in administrative procedures in very few areas due to the AC or the accordingly amended EU law. One example would be the Law on Public Participation in Drafting Battery Programmes (Gesetz über die Beteiligung der Öffentlichkeit bei der Aufstellung von Batterieprogrammen)15.

8

Further details in Müller, p. 151. See Guckelberger, p. 97. 10 See Fisahn, p. 8. 11 Sec. 2 (6) of the original Town and Country Planning Code of 23 June 1960 (Bundesgesetzblatt (BGBl.) I, p. 341). 12 See supra note 4. 13 Gesetz über die Umweltverträglichkeitsprüfung of 12 February 1990 (BGBl. I, p. 205), replaced by the version of 24 February 2010 (BGBl. I, p. 94), as amended by statute of 25 July 2013 (BGBl. I, p. 2749). 14 Gesetz über die Öffentlichkeitsbeteiligung in Umweltangelegenheiten nach der EGRichtlinie 2003/35/EG of 9 December 2006 (BGBl. I, p. 281 (Öffentlichkeitsbeteiligungsgesetz). 15 See art. 5 Öffentlichkeitsbeteiligungsgesetz. 9

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2. The History of the Right to Access the Courts a) The German System at the Outset The starting point in Germany is relatively restrictive: the requirement of the contention of the violation of a right of the claimant follows from sec. 42 (2) Administrative Court Procedures Code (Verwaltungsgerichtsordnung, thereafter VwGO)16. It is a well-known and well established principle that an action against an administrative decision will only be admissible if the claimant contends the infringement of his or her subjective right.17 A subjective right is understood as a right stemming from a legal provision that gives the individual the power to enforce the provision’s content.18 In order to establish whether this is the case, the objective of the provision has to be analysed. Only if the provision has as one of its objectives to individually protect the claimant, it can be found to convey a subjective right.19 The content and meaning of ‘subjective right’ has been established in case law20 and doctrine21. The phenomenon that standing will only be granted if the infringement of a provision designed to protect an individual right is contended is known as the ‘principle of the theory of the protective norm’ or ‘impairment of rights doctrine’ (Schutznormtheorie).22 With this system, Germany follows the principle that a person whose rights have been infringed can bring a case (Verletztenklage), whereas other legal systems grant standing to everyone having a sufficient interest (Interessentenklage)23, thus offering less restrictive access to the courts. Once access to the courts is granted, the administrative court checks if the claimant has been violated in his or her rights by the illegality of the challenged act. In so far as his or her rights have been infringed, the challenged decision will be annulled (see sec. 113 (1) VwGO). The strict rules for standing have been justified by the need for an efficient judicial system. Only if the cases of those claimants whose rights are significantly endangered are dealt with in a timely manner, can the standard of access to the courts as granted by art. 19 (4) Grundgesetz (GG) first sentence of the German constitution, the Basic Law, be met. The provision reads:

16

Verwaltungsgerichtsordnung of 19 March 1991 (BGBl. I, p. 686) as amended by statute of 8 July 2014 (BGBl. I, p. 890). 17 See only Wahl/Schütz, § 42 paras 43 et seq. 18 See only Remmert, p. 465. 19 See the Federal Administrative Courts case law, e. g. BVerwGE 107, 215, 220; BVerwGE 111, 276, 280. 20 See, for example, the references in supra note 19. 21 See Wegener, p. 101. 22 There is, in fact, a pluralism of different theories on protective norms, see only Bauer, p. 582 et seq., 592, 630. 23 For this distinction see Skouris.

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“Should any person’s rights be violated by public authority, he may have recourse to the courts.”

This provision has been interpreted in a way such as to bind the legislator to make sure that subjective rights of individuals can be enforced effectively in the courts.24 As a consequence, it has been argued that the legislator should not impose upon the courts, in addition, the task of objective law control so as to ‘save’ their capacity, i. e. to concentrate the courts’ energies for the protection of subjective rights.25 b) The Influence of European and International Law Art. 9 (2) AC and the implementing EU law, i. e. art. 11 EIA Directive and art. 25 IED, at first glance, do not make it necessary to overhaul the German legal system as regards access to the administrative courts. On the contrary, these provisions seem to intentionally leave space for the German legal system to remain as it is: according to art. 9 (2) lit. b) AC and art. 25 (1) lit. b) IED, for example, Member States may require claimants to maintain the impairment of a right, “where administrative procedural law of a Member State requires this as a precondition”. Art. 9 (2) subpara. 2 AC expressly states that “what constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice”. The wording of art. 25 (3) IED is almost the same. At first glance, one could argue that these provisions take account of systems like the German one.26 As a consequence, the Environmental Appeals Act (Umweltrechtsbehelfsgesetz, thereafter EAA)27, that was enacted in 2006 in order to implement art. 9 (2) AC and the respective EU directives, still followed very much the idea of traditional German administrative law. The EAA contained different requirements for an action against an administrative decision having an impact on the environment to be admissible. The provision on which the claimant must rely, according to sec. 2 (1) no. 1 EAA, had to meet four conditions in order to establish standing: the claimant had to contend the violation of a provision, firstly, protecting the environment, secondly, relevant to the decision, thirdly, that was designed to protect an individual’s right, and finally, that affected the tasks of the NGO according to its constitutional document. These conditions would have to be met also in cases where the claimant was a NGO.

24

See Krebs, in: Münch/Kunig, Art. 19, para. 58. See Krebs, Subjektiver Rechtsschutz, p. 191, 210. 26 Arguing this way: von Danwitz, Aarhus-Konvention, p. 272, 278; von Danwitz, Zur Umsetzung der Richtlinie 2003/35/EG, p. 31, 44. 27 Gesetz über ergänzende Vorschriften zu den Rechtsbehelfen in Umweltangelegenheiten nach der EG-Richtlinie 2003/35/EG (Umwelt-Rechtsbehelfsgesetz – UmwRG) of 7 December 2006 (BGBl. 2006 I, p. 2816). 25

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However, according to art. 9 (2) subpara. 2 AC, the public concerned should be granted wide access to justice in order to control environmental decisions. Still, legal scholars in Germany argued that this provision was of a merely programmatic nature and that art. 9 (2) AC stood under the reservation of national law.28 However, for reasons of fairness and equality, the Court of Justice of the European Union (CJEU) held in its Trianel judgment, that it cannot make a difference which legal system the Member State follows, and that, as a consequence, the access to the courts must be open for NGOs without the need to demonstrate a subjective right.29 Consequently, the EAA had to be amended in 201330. Now, it is no longer required that the claimant contends the violation of a provision that was designed to protect an individual right. However, after the reform of the EAA, new conditions were imposed on the claimant: according to sec. 4a (1) EAA, for example, he or she would have to substantiate his or her claim within a strict time limit of six weeks. Usually, this time frame would be determined by the court and could be extended. Also sec. 4a (2) EAA provides some limitations for the court that reviews the challenged decision, which will be discussed below. 3. The History of the Relevance of Non-conformance with Procedural Requirements In practice, in German administrative law non-conformance with procedural requirements did not have a significant effect on the outcome of an action challenging a specific administrative decision.31 In other words, when a public authority granted a licence without having complied with all procedural requirements set out in the Administrative Procedures Code (Verwaltungsverfahrensgesetz, thereafter VwVfG)32, and when a claimant challenged this administrative decision in the courts, the courts regularly upheld the decision despite the fact that it did not result from a procedure in line with the law.33 This can be explained by the prevalent interpretation of sec. 46 VwVfG. It reads: “Section 46 Consequences of defects in procedure and form Application for annulment of an administrative act […] cannot be made solely on the ground that the act came into being through the infringement of regulations governing procedure, form or local competence, where it is evident that the infringement has not influenced the decision on the matter.” 28

See supra note 26. Case C-115/09, Trianel, para. 42. 30 Umwelt-Rechtsbehelfsgesetz of 8 April 2013 (BGBl. I, p. 753), as amended by statute of 7 August 2013 (BGBl. I, p. 3154). 31 Müller, p. 179. 32 Verwaltungsverfahrensgesetz of 23 January 2003 (BGBl. I, p. 102), as amended by statute of 25 July 2013 (BGBl. I, p. 2749). 33 See Sellner/Reidt/Ohms, 3rd part, para. 41; Jarass, § 10 BImSchG, para. 133; Kloepfer, § 14 para. 147. 29

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In practice, this provision has been interpreted in a way as to require the claimant to prove that the decision would have been different to the one actually taken, should the proper procedure have been followed.34 Hence, the claimant bore the burden of proof because the causal link between the violation of procedural provisions and the outcome of the decision on the matter would only have been acknowledged by the courts, if – according to the circumstances of the individual case – the “concrete opportunity” existed that the public authority would have taken a different decision without the violation of procedural law.35 To prove this was extremely difficult. Therefore, for example, it was very difficult to discipline the public authorities to respect, in particular, the provisions on public participation in administrative procedures granting licences with possible implications for the environment.36 This prevalent interpretation was therefore often criticized.37 It should be noted that the wording of sec. 46 VwVfG also allows for a different interpretation. By stating that the only case in which annulment cannot be sought is “where it is evident that the infringement has not influenced the decision on the matter” the provision aims at making it the exception that non-conformity with procedural rules has no consequences at all; thus making it the rule rather than the exception that non-compliance has consequences.38 Likewise, the wording is open to a reading that the public authority would have to prove that it is “evident that the infringement has not influenced the decision on the matter”. It has been questioned in doctrine whether the prevalent interpretation of sec. 46 VwVfG was compatible with art. 9 (2) subpara. 2 AC, which states that the public concerned must have an opportunity “to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6”.39 It was, in particular, seen as problematic that, in practice, claimants in Germany had no right to enforce the provisions of a procedural nature, i. e. those implementing art. 6 AC on public participation. In an attempt to implement the AC and the respective EU directives, a provision was included in sec. 4 (1) EAA concerning the non-conformance with procedural requirements. It stipulated that – in case an environmental impact assessment had not been part of the procedure where it was prescribed by law – the challenged decision should be annulled by the court. However, this provision meant that other procedural 34 BVerwG, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2006, p. 1170 para. 8; BVerwGE 125, 116, 129 et seq. para. 52. 35 BVerwGE 69, 256, 269 et seq; BVerwGE 75, 214, 228; BVerwG, NVwZ 1994, p. 688, 690; BVerwGE 100, 238, 252; BVerwG, Deutsches Verwaltungsblatt (DVBl.) 1998, p. 1184, 1185; Oberverwaltungsgericht (OVG) Münster, NVwZ 2003, p. 361, 363. 36 Bonk, p. 320, 326; Hatje, p. 477, 480; see also Gellermann, p. 433, 441. 37 For example by Pünder, § 13 para. 63, § 12 para. 8; see also Schoch, p. 279, 292, 326, 480. 38 See further Müller, p. 181 with further references. 39 Müller, p. 211 and 222 with further references.

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mistakes, for example, a public participation that did not comply with legal requirements, did not have the same effect. In practice, these procedural flaws would not lead to annulment of the administrative decision. The question whether procedural mistakes should have the potential of noticeable consequences on the outcome of the decision was examined by the European Court of Justice (ECJ) in the Altrip case40. The ECJ held that a provision like the German sect. 46 VwVfG was not incompatible with EU law. According to the ECJ, not every procedural flaw must lead to the annulment of the challenged decision. However, the Court made it very clear that the burden of proof (that the decision without the mistake would have been different) must not be on the claimant.41

IV. Evaluation of the Current Situation The new provisions in the Environmental Appeals Act are still problematic. 1. Individuals vs. NGOs The AC is concerned with enabling NGOs as well as individuals. Recital 13 AC demonstrates this. It recognises “the importance of the respective roles that individual citizens, non-governmental organizations and the private sector can play in environmental protection”. In addition, art. 2 (5) AC states that non-governmental organisations promoting environmental protection should be deemed part of the public concerned and, thus, benefit from the rights given to this group that usually would have to prove an interest. Art. 9 (2) subpara. 2 AC, on the other hand, privileges NGOs expressly by stating that, in order to determine what constitutes a sufficient interest and impairment of a right “the interest of any non-governmental organisation […] shall be deemed sufficient for the purpose of subparagraph (a) above. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.” This means that they should be able to have standing in order to enforce the right to public participation. In of this context arise two problems, at least. First, standing for NGOs as granted by the EAA and second, the amendments to the general rules concerning administrative court procedures as provided for in sec. 4a EAA.

40 41

Case C-72/12, Altrip. Case C-72/12, Altrip, paras. 52 et seq.

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2. Standing for NGOs First of all, a question of compatibility with constitutional law arises. According to art. 3 GG, the German constitution, the principle of equality applies. Equal situations have to be treated equally, whereas different situations have to be treated differently.42 How can NGOs be treated differently outside the scope of application of the EAA? Since the amendment of sec. 2 (1) EAA, NGOs will have standing in cases they initiate against administrative decisions having an implication of the environment, without the need to maintain the impairment of a provision that was designed to protect an individual right, whereas outside the scope of the EAA– with another exception in nature conservation law43 – they will not have standing if they do not contend the infringement of an individual right. It is likely that this distinction will be upheld by the federal courts and that they will justify the ‘break’ to the overarching German principle of Schutznormtheorie with the need to abide by international and European law, even though, in doing so they would be giving way to a two tier system of legal protection against administrative decisions. A distinctive administrative court procedural law would apply when it comes to environmental law.44 The need to comply with international and EU law justifies a differentiation. Therefore, it cannot be expected that the Federal Constitutional Court will find, if the question arises, that also in cases where only domestic law applied, any provision, not only one granting protection for individuals, could be relied upon. After all, the Schutznormtheorie, which restricts standing, is the reason why only a limited number of cases are admissible and thus have to be dealt with in substance by the courts. The effect of limiting the number of cases to be determined thoroughly, is that the cases that are admissible are treated in a timely manner and that they are granted an effective right of access to the courts as guaranteed by art. 19 GG.45 By extending the duty of legal examination of the courts to a minimum, the constitution can be complied with. a) The Amendments by Sec. 4a (1) EAA It should be noted that sec. 4a EAA applies also, according to sec. 4a (4) EAA, to actions initiated by individuals and not only by NGOs.46 According to sec. 4a (1) EAA, the claimant has to substantiate his or her claim within a strict time limit of six weeks. The German Federal Government justified this new provision with the need to balance the rights of the NGOs that have been expanded by the amending statute with the 42

According to the Federal Constitutional Court in BVerfGE 1, 14, 52. Sec. 64 Federal Nature Conservation Act (Bundesnaturschutzgesetz) of 29 July 2009 (BGBl. I, p. 2542), as amended by statute of 7 August 2013 (BGBl. I, p. 3154). 44 This consequence is appreciated by Gärditz, p. 1, 10. 45 See supra note 24. 46 Seibert, p. 1040, 1045; Porsch, p. 1393, 1394. 43

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interests of those adversely affected by an action brought by an NGO.47 However, this does not explain why this provision also applies for cases brought by individuals. Their rights, in fact, have not been extended. Sec. 4a EAA creates a situation in which individuals who bring an environmental case are treated worse than those who bring a case outside the scope of application of the EAA.48 The consequences are absurd: if sec. 4a (1) EAA applies, i. e. where it is possible that the challenged decision made an environmental assessment necessary, the deadline is six weeks only, whereas, if he or she challenges a decision with environmental implications for which evidently no environmental assessment is necessary, he or she has as much time as the court grants him or her to give reasons for their application for judicial review. Usually the courts are generous when setting deadlines and take into account specific time constraints of the individual claimant or his or her lawyer. The new rule is not only questionable in terms of appropriateness but also detrimental from the point of view of the unity of the system of judicial review as a whole. Some argue that this fact alone leads to more complicated cases in the scope of application of the EAA and hence to longer administrative court procedures in the field of environmental law.49 Also, in this context, the question arises as to whether this distinction is compatible with art. 3 GG according to which equal situations have to be treated equally. b) The Requirement of Violation of Environmental Law Furthermore, German law contains the requirement of the violation of environmental law that has to be stipulated by the claimant. According to sec. 2 (1) no. 1 EAA, the claimant has to rely on provisions which protect the environment (die dem Umweltschutz dienen) in order to have standing. In doctrine, this requirement has usually been deemed to be compatible with EU and international law,50 despite the fact that one could argue that art. 9 (2) subpara. 2 AC and the implementing EU law accordingly require an opportunity for the public concerned “to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6”. From its wording, a restriction on environmental law is not evident. However, it is clear from the context of the provision that it cannot be read other than being restricted to environmental law.51 This becomes clear from looking at the full title of the AC, i. e. Convention on Access to Information, Public Participation in Decision-Making and Access to 47 See the Explanatory Memorandum to the Draft of the Amendment of the Environmental Appeals Act tabled by the Federal Government on 10 October 2012, BT-Drs. 17/10957, p. 17. 48 Seibert, p. 1045. 49 Seibert, p. 1045. 50 See, for example, Müller, p. 227. 51 For example, Seibert, p. 1044.

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Justice in Environmental Matters that it extends only to environmental law. Opponents of this restriction argue that the claimant should be able to avert a disadvantageous situation for the environment for any reason. Therefore all legal provisions should be able to be relied upon by the claimant.52 However, if environmental law i. e. a provision serving or protecting the environment is interpreted broadly so as to encompass also building or planning law, this could not be an interpretation contravening the AC. This question has been decided by the Aarhus Convention Compliance Committee (ACCC)53. Its conclusions were delivered in December 2013 and were adopted by the Meeting of the Parties in July 2014. The ACCC found Germany in breach of the AC: 54 “While the Convention relates to environmental matters, there may be legal provisions that do not promote protection of the environment, which can be violated when a decision under article 6 of the Convention is adopted, for instance, provisions concerning conditions for building and construction, economic aspects of investments, trade, finance, public procurement rules etc. Therefore, review procedures according to article 9, paragraph 2, of the Convention should not be restricted to alleged violations of national law ‘serving the environment’, ‘relating to the environment’ or ‘promoting the protection of the environment’, as there is no legal basis for such limitation in the Convention.“55

The ACCC took this decision because of a failure of the German Government to demonstrate that there is case law interpreting environmental law in such a broad context, even though the German Government submitted several recent judgements of administrative courts that had interpreted environmental law broadly, e. g. including water law, flood protection law and provisions protecting human health.56 However, this was, apparently, not sufficient for the ACCC. As a consequence, the EAAwill have to be amended again in order to comply with the AC and EU law. 52

Berkemann, p. 780, 786. Findings and recommendations with regard to communication ACCC/C/2008/31, concerning compliance by Germany, adopted by the Compliance Committee on 20 December 2013. For a more detailed discussion see The German Criteria for Access to Justice under the Scrutiny of the Aarhus Convention Compliance Committee and of the Court of Justice of the European Union: is there Room for Similar Proceedings against Italy? (Elena Fasoli), in this volume, p. 185. 54 ACCC/C/2008/31, p. 14 para. 80. 55 ACCC/C/2008/31, p. 14 para. 78. 56 Response of the Federal Republic of Germany to the draft findings and recommendations with regard to communication ACCC/C/2008/31 concerning compliance by Germany of 6/12/2013, p. 5 et seq. See also the decision of the Federal Administrative Court of 10 October 2012, 9 A 18/11 (Berliner Stadtautobahn A 100), BVerwGE 144, 243, stating that sec. 2 EEA cannot be interpreted in a way as to include only provisions having as their one and only objective to protect the environment, but that – on the contrary – it is sufficient that the provision in question also aims at protecting the environment. It held that a specific provision in planning law was such a provision. 53

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The options for the German legislator are manifold: standing could be granted outside subjective rights as a general principle, hence abolishing sec. 42 (2) VwGO. This is not very likely to happen for political reasons, particularly as the German system has been proven to be very successful.57 A more likely option would be to grant standing every time the AC applies due to a specific legal provision, which applies only in environmental matters and grants standing even if no subjective rights are impaired. Sec. 42 (2) VwGO, leaves scope for such an interpretation.58 c) Consequences of Non-conformance with Procedural Requirements As a consequence of the Altrip decision of the ECJ sec. 4 EAA will have to be adjusted.59 It is against EU law if procedural flaws do not have the potential to have a negative effect on the validity of the challenged decision. In a case of non-conformance with procedural requirements there must be the potential of annulment of the licence. Hence it can be expected that the legislator will expand the list of cases falling under sec. 4 EAA. In this context it should be noted that the very first draft of an EAA of the Federal Ministry of the Environment of February 200560 as well as the draft tabled by the Federal Government in 200661 (that was not adopted in the end) did not foresee such a limitation of grounds for annulment.62 Instead, the original draft foresaw in its sec. 3 (1) EAA that contrary to sec. 46 VwVfG the annulment of an administrative decision authorising an installation in the scope of the act can be sought “if relevant provisions about the procedure have been infringed”. The subsequent sentence elaborated the relevant provisions: firstly, if an EIA (or the screening) that was prescribed had not taken place, and secondly, if one or several steps in an EIA process had not been followed. This provision was motivated by the need to comply with the Wells63 judgment of the CJEU.64 However, it was ultimately not adopted because of the resistance of the States (the Länder) in the Federal Council (Bundesrat).65 57

See Müller, p. 245. See, for a more detailed analysis: Implementation and the Separation of Powers (Angela Schwerdtfeger), in this volume, p. 169. 59 See only Böhm, p. 203, 204. 60 Draft of the Federal Government of 21 February 2005 (Kabinett-Nr. 15 16 100 01, G I 442120-6/0). 61 This provision had become sec. 4 in the draft tabled by the Federal Government in the Federal Council (Bundesrat), BR-Drs. 552/06 of 11 August 2006. 62 See Böhm, p. 203. 63 Case C-201/02, Delena Wells v UK. 64 See Explanatory Memorandum of the draft tabled by the Federal Government in the Federal Council (Bundesrat), BR-Drs. 552/06 of 11 August 2006, p. 24. 65 See only Böhm, p. 203. 58

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d) The Restriction of Control of the Courts Another provision of the EAA could also be considered as problematic. There is sec. 4a (2) EAA, introduced recently in 2013, stating that a court will only have a limited power to control the challenged decision, if the provision that solves the case, grants the public authority a margin of appreciation in deciding whether the conditions of the provision are fulfilled. Sec. 4a (2) EAA allows the court only to check, firstly, if the public authority understood fully the facts of the case at hand, secondly, if the decision is compatible with procedural rules and whether the principles of correct legal appreciation have been respected, thirdly, if the law has been applied correctly, and, fourthly, whether no illegal considerations have influenced the decision. This however, is not a restriction compared to the general rules that apply if a public authority is granted a margin of appreciation in deciding whether the conditions of a provision are fulfilled,66 even though the provision was introduced in order to lighten the burden of the courts, given that they would have to expect more actions in environmental matters brought by NGOs.67 The rule can be explained by the separation of powers.68 While it is the task of the public authorities to decide individual cases at hand, it is the task of the court only to examine the correct application of law by the public authorities. It must not substitute its own decision of the individual case with that of the public authority. This provision seems to be compatible with art. 9 (2) subpara. 2 AC according to which the public concerned must have the opportunity “to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6”, as it is not restricting effective access to the courts. Claimants who have standing are still granted a considerable and comprehensive power to control the challenged decision. However, it should be borne in mind that this provision also applies to cases brought by individuals according to sec. 4a (4) EAA. This is problematic for the reasons discussed above.69

V. Conclusion To conclude, a significant influence of the AC in German law can be detected. Cases like the artificial lake on the grounds of the former Tempelhof Airport of

66

See only Seibert, p. 1046; BVerfG, NVwZ 2010, p. 435 para. 60. See the Explanatory Memorandum to the Draft of the Amendment of the Environmental Appeals Act tabled by the Federal Government on 10 October 2012 (supra note 47), p. 18. 68 See only Wahl, p. 409. 69 See section IV.2.a). 67

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the Administrative Court of Berlin70 show that by now knowledge as to the implications of the AC has reached the Germany judiciary. Even though the AC and its European and German implementations were not applicable because a more specific provision applied, the court elaborated on five pages of the twenty nine page long judgment in an obiter dictum on the interpretation of the EAA, in particular in light of international and European law. That is significant for future case law. As a consequence of the AC, the whole German system of access to the courts has to be overhauled. The long standing principle that a claimant must contend the infringement of his or her subjective rights before the action is declared admissible by an administrative court is no longer applicable in this broad nature. Nowadays, there are specific provisions in the scope of application of the AC, i. e. in environmental matters, that have to be taken into account. References Bauer, Hartmut: Altes und Neues zur Schutznormtheorie, in: Archiv des öffentlichen Rechts (AöR), vol. 113, 1988, p. 582 et seq. Berkemann, Jörg: Die Umweltverbandsklage nach dem Urteil des EuGH vom 12. Mai 2011, in: Natur und Recht (NuR) 2011, p. 780 et seq. Böhm, Monika: Die gerichtliche Kontrolle von UVP-Fehlern, in: Umwelt- und Planungsrecht 2014, p. 203 et seq. Bonk, Heinz-Joachim: Strukturelle Änderungen des Verwaltungsverfahrens durch das Genehmigungsverfahrensbeschleunigungsgesetz, in: Neue Zeitschrift für Verwaltungsrecht (NVwZ) 1997, p. 320 et seq. Danwitz, Thomas von: Aarhus-Konvention: Umweltinformation, Öffentlichkeitsbeteiligung, Zugang zu den Gerichten, in: NVwZ 2004, p. 272 et seq. – Zur Umsetzung der Richtlinie 2003/35/EG und der sog. Aarhus-Konvention durch das Umwelt-Rechtsbehelfsgesetz, in: Jahrbuch des Umwelt- und Technikrechts 2007, p. 31 et seq. Fisahn, Andreas: Demokratie und Öffentlichkeitsbeteiligung, 2002. Gärditz, Klaus Ferdinand:Verwaltungsgerichtlicher Rechtsschutz im Umweltrecht, in: NVwZ 2014, p. 1 et seq. Gellermann, Martin: Auflösung von Normwidersprüchen zwischen europäischem und nationalem Recht, in: Die öffentliche Verwaltung (DÖV) 1996, p. 433 et seq. Guckelberger, Annette: Bürokratieabbau durch Abschaffung des Erörterungstermins?, in: DÖV 2006, p. 97 et seq. Hatje, Armin: Die Heilung formell rechtswidriger Verwaltungsakte im Prozeß als Mittel der Verfahrensbeschleunigung , in: DÖV 1997, p. 477 et seq. 70 Decision of the Administrative Court Berlin of 28 February 2014, VG 19 L 334.13, available at: http://www.gerichtsentscheidungen.berlin-brandenburg.de/jportal/?quelle=jlink& docid=JURE140010238&psml=sammlung.psml&max=true&bs=10.

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Jarass, Hans D.: BImSchG – Kommentar, 10th ed. 2013. Kloepfer, Michael: Umweltrecht, 3rd ed. 2004. Krebs, Walter: Subjektiver Rechtsschutz und objektive Rechtskontrolle, in: Erichsen, HansUwe/Hoppe, Werner/von Mutius, Albert (eds.): Festschrift für Menger, 1985, p. 191 et seq. – article 19, in: v. Münch, Ingo/Kunig, Philip (eds.): Grundgesetz-Kommentar, vol. 1, 5th ed. 2000. Müller, Bilun: Die Öffentlichkeitsbeteiligung im Recht der Europäischen Union und ihre Einwirkungen auf das deutsche Verwaltungsrecht am Beispiel des Immissionsschutzrechts, 2010. Porsch, Winfried: Verwaltungsgerichtlicher Rechtsschutz im Umweltrecht, in: NVwZ 2013, p. 1393 et seq. Pünder, Hermann: Verwaltungsverfahren, in: Erichsen, Hans-Uwe/Ehlers, Dirk (eds.): Allgemeines Verwaltungsrecht, 13th ed. 2006, p. 415 – 583. Remmert, Barbara: Die nationale Ausgestaltung richtlinienrechtlich geforderter subjektiver Rechtsstellungen, in: Die Verwaltung, vol. 29 1996, p. 465 et seq. Schoch, Friedrich: Die europäische Perspektive des Verwaltungsverfahrens- und Verwaltungsprozeßrechts, in: Schmidt-Aßmann, Eberhard/Hoffmann-Riem, Wolfgang (eds.): Strukturen des europäischen Verwaltungsrechts, 1999, p. 279 et seq. Seibert, Max-Jürgen: Verbandsklagen im Umweltrecht, in: NVwZ 2013, p. 1040 et seq. Sellner, Dieter/Reidt, Olaf/Ohms, Martin: Immissionsschutzrecht und Industrieanlagen, 3rd ed. 2006. Skouris, Vassilios: Verletztenklagen und Interessentenklagen im Verwaltungsprozeß, 1979. Wahl, Rainer: Risikobewertung der Exekutive und richterliche Kontrolldichte, in: NVwZ 1991, p. 409 et seq. Wahl, Rainer/Schütz, Peter: § 42, in: Schoch, Friedrich/Schneider, Jens-Peter/Bier, Wolfgang (eds.): Verwaltungsgerichtsordnung, 26th ed. 2014. Wegener, Bernhard: Rechte des Einzelnen, 1998.

Attorneys for the Environment – an Effective Implementation of Art. 9 (3) Aarhus Convention? By Ulrike Giera1 Abstract Um Vollzugs- und Rechtsschutzdefiziten im österreichischen Umweltrecht entgegenzuwirken, wurden in den 1980er Jahren so genannte Umweltanwälte eingerichtet. Es handelt sich dabei um einen auf Fragen des Umweltschutzes spezialisierten Ombudsmann, der als – in der Regel – weisungsfrei gestelltes Verwaltungsorgan organisiert ist. Heute bestehen in allen neun österreichischen Bundesländern Landesumweltanwaltschaften, auf Bundesebene scheiterten sämtliche Versuche eine Bundesumweltanwaltschaft zu etablieren. Hauptaufgabe des Umweltanwalts/der Umweltanwältin ist die Belange des Umweltschutzes als öffentliches Interesse in Verwaltungsverfahren zu vertreten und die Einhaltung von Vorschriften des objektiven Umweltrechts geltend zu machen. Als Anwälte für die Umwelt repräsentieren sie dabei nicht eigene Interessen, sondern das öffentliche Interesse Umweltschutz. Auf Bundesebene haben die Landesumweltanwälte etwa Parteistellung im UVP-Verfahren oder in verschiedenen abfallrechtlichen Genehmigungsverfahren. Auf Landesebene sind sie an umweltrelevanten Verfahren, die nach der bundesstaatlichen Kompetenzverteilung in die Zuständigkeit der Bundesländer fallen beteiligt, insbesondere sind hier naturschutzrechtliche Verfahren zu nennen. Neben der Teilnahme am Verwaltungsverfahren haben sie eine Vielzahl anderer Aufgaben, wie die Begutachtung von umweltbezogenen Gesetzen und Verordnungen, die Kontrolle von Missständen im Interesse des Umweltschutzes oder die Behandlung von Beschwerden von Einzelpersonen. In Zusammenhang mit der Umsetzung des Art. 9 Abs. 3 Aarhus Konvention stellt sich die Frage, ob die Gewährung von Parteistellung und Beschwerderechten an die Umweltanwälte eine mögliche Umsetzungsoption darstellt. Dagegen spricht zum einen, dass die Umweltanwälte aufgrund ihrer Einbindung in die staatliche Verwaltung keine Mitglieder der Öffentlichkeit im Sinne der Aarhus Konvention sind, zum anderen dass die Aarhus Konvention keine derartige Einrichtung vorsieht, sondern access to justice direkt an die Mitglieder der Öffentlichkeit einräumt. Allerdings fördern die Umweltanwälte die effektive Durchsetzung des Umweltrechts und tragen dadurch zur Erreichung der Ziele der Aarhus Konvention bei, so dass die Umweltanwaltschaften gemäß Art. 5 Abs. 3 Aarhus Konvention als eine Umsetzungsoption, die über den Mindeststandard der Konvention hinausgeht, aber für sich genommen nicht ausreichend ist, um die Anforderungen des Art. 9 Abs. 3 Aarhus Konvention zu erfüllen, qualifiziert werden können. 1 This paper exclusively represents the author’s personal opinion and does not reflect the official position of Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft.

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I. Introduction In 1972, Christopher Stone raised his now-famous question “Should trees have standing?” In his essay, Stone proposes that legal rights should be granted to forests, oceans, rivers – to the natural environment as a whole. According to Stone the environment should be treated like a legal incompetent, for whom a court appoints a guardian to represent and handle the incompetent’s legal affairs. Similarly, individuals who find out about dangers to the environment could apply to a court in order to be nominated as guardians for the environment.2 With his idea, Stone points to a crucial problem of environmental law: a right is only effective if it is procedurally enforceable. The environment cannot enforce its rights itself and needs someone to intercede on its behalf – a private person, an NGO, or an ombudsman, for example.3 The Austrian institution of the Ombudsman for the Environment (Umweltanwalt) follows a similar approach, although it is not a private person who acts as an attorney for the environment, but rather a governmental organisation. A study carried out for the European Commission found that in all Member States, the Austrian institution of an Ombudsman for the Environment comes closest to Stone’s idea.4 Through the Ombudsman, the environment gains standing in various proceedings. As a guardian for the environment, the Ombudsman is entitled to claim environmental issues in administrative proceedings and defend the interests of the environment. Today, the Ombudsman for the Environment is a well-established institution in the Austrian legal system and an important stakeholder in environmental law. The objective of this paper is to describe the institution of the Austrian Ombudsman for the Environment. The paper focuses on the purpose of the Ombudsman and on the duties carried out, while briefly explaining the structure and the organisation of the institution. Furthermore, the paper analyses the implications of the Aarhus Convention (AC) for the Ombudsman. In particular, it deals with the question of whether granting standing in administrative proceedings to the Ombudsman for the Environment can be qualified as an implementation measure under art. 9 (3) AC.

II. Historical Development In the 1970s, there was a considerable deal of discussion among scholars as to how the environment could be protected by legal measures.5 One of the main problems in the Austrian legal order regarding environmental protection was, and continues to be the fact that environmental issues are considered to be public interests, which have to 2

Stone, p. 111 et seq. Schulev-Steindl, Instrumente des Umweltrechts, p. 548. 4 Milieu, p. 19. 5 Cf. Oberndorfer, p. 534; further for example Wimmer, p. 166; Popper, p. 100 et seq.; Pindur, p. 72 et seq. 3

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be taken care of by the administration ex officio; thus the possibilities for individuals to bring these issues before the courts are very limited.6 This situation led to the creation of an Ombudsman for the Environment to provide legal protection for the environment. Oberndorfer seems to have been the first to suggest the introduction of an “attorney for environmental protection”, an institution that should be organized as an independent administrative organ capable of participating in administrative proceedings.7 Due to the growing public awareness of environmental issues in the 1980s8, the topic made its way onto the political agenda. Nevertheless, several political attempts and initiatives on the federal level to establish an Ombudsman for the Environment failed.9 Subsequently, the Länder took the lead – Austria is organised as a federal state that is sub-divided into nine different states (the so-called Länder) – and established the first Länder Ombudsmen for the Environment.10 The first one was established in Vorarlberg in 1982,11 the last one in Burgenland in 2002.12 Today each of the nine Länder has an Ombudsman for the Environment (Landesumweltanwalt), while on the federal level, there is only a general Ombudsman (Volksanwalt). Established in 1977, the main duty of the general Ombudsman is to keep tabs on misconduct within the administration.13 This means that the Ombudsman only deals with environmental questions when environmental matters and misconduct within the administration go hand in hand. Due to the fact that all of the existing Ombudsmen for the Environment have been established by statutes of the Länder, there are a number of differences between the institutions in the individual states.14 The following paper aims to provide a general overview of the institution of the Ombudsman for the Environment, pointing out differences between the Länder Ombudsmen only when it is considered necessary.

6

Cf. IV.2.a), IV.2.b). Oberndorfer, p. 534; cf. also the overview Schnedl, p. 153 et seq. 8 In 1984 the Danube meadows in Hainburg were occupied to prevent the construction of a hydro power plant. This event is considered as one of the starting points for the environmental movement in Austria. 9 Cf. Schnedl, p. 166 et seq. 10 Schnedl, p. 171. 11 Vorarlberg Nature Protection Act 1982. The Ombudsman was competent to protect the landscape and scenery (Landschaftsschutzanwalt); cf. Meyer, p. 4. 12 Burgenland Ombudsman for the Environment Act, Landesgesetzblatt (LGBl.) no. 78/ 2002 in the version LGBl. no. 79/2013. 13 Cf. art. 148a to 148j Federal Austrian Constitution, Bundesgesetzblatt (BGBl.) no. 1/ 1930 in the version BGBl. I no. 164/2013. 14 Cf. the overview of Meyer, p. 4 et seq. 7

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III. The Term ‘Ombudsman for the Environment’ Although all of the existing Ombudsmen for the Environment have been established by the law of the Länder, the term ‘Ombudsman for the Environment’ is defined by a federal statute. According to sec. 2 (4) Environmental Impact Assessment Act (EIA Act)15, the Ombudsman for the Environment is an administrative organ established by federal or Länder law to put forward claims for the protection of the environment in administrative proceedings. Similarly, the Federal Environmental Management Act16, which contains provisions regarding the EMAS-Regulation17, defines the Ombudsman for the Environment in sec. 1a (5) Federal Environmental Management Act as an administrative organ established by the federal state, the Länder or a municipality in order to put forward a claim for the protection of the environment in administrative proceedings. The Länder statutes, on the other hand, do not define the term “Ombudsman for the Environment”. While some statutes contain a general enumeration of objectives of the Ombudsman for the Environment – such as conservation of the natural environment as the basis for human life, avoidance of damage to the environment and reduction of existing effects – they do not define the term of Ombudsman specifically.18 According to the general definition in the EIA Act, an administrative organ can be qualified as an Ombudsman for the Environment if his/her purpose is the protection of the environment and if he/she was appointed to take care of at least one of the environmental factors enumerated in the EIA Act, such as human beings, flora, fauna, soil, water, etc. Furthermore, the organ must be capable of participating in administrative proceedings.19 Legal scholars agree that all existing Länder Ombudsmen for the Environment fulfil the requirements of sec. 2 (4) EIA Act and that all of them can be qualified – at least from a functional perspective – as Ombudsman for the Environment under the EIA Act.20 According to the scope of duties of an Ombudsman, we can distinguish two types: an Ombudsman who is competent to deal with environmental issues in general and an Ombudsman who is only nominated to put forward claims concerning nature conservation issues. Those belonging to the latter group are referred to as Ombudsmen for Nature Conservation.21 As the Ombudsman in Tyrol, Vorarlberg and Carinthia22 is 15

BGBl. no. 697/1993 in the version BGBl. I no. 14/2014. BGBl. I no. 96/2001 in the version BGBl. I no. 98/2013. 17 Regulation (EC) no. 1221/2009 of the European Parliament and of the Council of 25 November 2009 on the voluntary participation by organisations in a Community ecomanagement and audit scheme (EMAS), OJ L 342, p. 1 in the version OJ L 158, p. 1. 18 Cf. sec. 1 Salzburg Ombudsman for the Environment Act, LGBl. no. 67/1998 in the version LGBl. no. 106/2013. 19 Schulev-Steindl, Rechtliche Optionen, p. 23; cf. Randl, p. 150 et seq. 20 Schulev-Steindl, Rechtliche Optionen, p. 23; Randl, p. 150 et seq; Raschhofer, p. 91. 21 Cf. Meyer, p. 4 et seq. 16

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only competent to observe and promote the protection of nature, he/she only has standing in proceedings concerning the protection of nature and not in proceedings regarding other environmental issues.23 However, these Ombudsmen fulfil the requirements of the EIA Act and are capable of participating in environmental procedures provided by federal law – for example EIA procedures or procedures concerning installations under the integrated pollution prevention control (IPPC) regime.24

IV. Organisation The Ombudsman for the Environment is a governmental institution of the Länder. It is incorporated into the organisation of the Länder governments25 and organized as an administrative organ of the respective state.26 Although they are part of the administration, most Ombudsmen for the Environment are not bound by instructions.27 As an independent organ, the Ombudsman can even represent the interests of the environment against the interests of the administration.28 It is only in the states of Vorarlberg, Tyrol and Carinthia that the Ombudsman is not independent and is bound by instructions of administrative authorities that are higher in the legal hierarchy.29 However, a limiting factor of the independence of all Ombudsmen for the Environment is their de facto integration into the administration of the Länder:30 on the one hand, Ombudsmen are appointed by the Länder governments. In the state of Vorarlberg, however, the Ombudsman31 is elected by NGOs based in Vorarlberg, whose 22

Carinthia is a general exception. The Ombudsman for the Environment is organized as an advisory committee that has 6 members. Cf. sec. 61f Carinthian Nature Conservation Act, LGBl. no. 79/2002 in the version LGBl. no. 85/2013. 23 Sec. 36 Tyrolean Nature Conversation Act, LGBl. no. 26/2005 in the version LGBl. no. 130/2013; sec. 50 Vorarlberg Nature Conservation and Landscape Development Act, LGBl. no. 22/1997 in the version LGBl. no. 9/2014; sec. 61 Carinthian Nature Conservation Act. 24 Cf. chapter IV.1. 25 For example sec. 4 Lower Austrian Environmental Protection Act, LGBl. no. 8050-8; sec. 6 Styrian Act on Institutions for Environmental Protection, LGBl. no. 56/1988 in the version LGBl. no. 87/2013; sec. 3 Viennese Act on Institutions for Environmental Protection, LGBl. no. 36/1996 in the version LGBl. no. 31/2013. Only in the state of Salzburg does the Ombudsman have his/her own legal personality, sec. 2 Salzburg Ombudsman for the Environment Act. 26 Schulev-Steindl, Rechtliche Optionen, p. 27. 27 Cf. for example sec. 4 (2) Upper Austrian Environmental Protection Act, LGBl. no. 84/ 1996 in the version LGBl. no. 36/2014. 28 Raschauer, para. 372; Schulev-Steindl, Rechtliche Optionen, p. 27. 29 Meyer, p. 10 f. 30 Kroiss, p. 92. 31 As already mentioned, in the case of Vorarlberg the Ombudsman is an Ombudsman for Nature Conservation only.

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statutory duties comprise of nature conservation.32 On the other hand, the Ombudsman for the Environment is funded by the Länder. Their human resources and facilities depend on the Länder government.

V. Purpose and Duties of the Ombudsman for the Environment The Ombudsmen for the Environment were established to protect the environment and are therefore qualified as ‘administrative organs to promote the protection of the environment’ or as ‘administrative organs for the protection of the environment’.33 Their most important duty is to observe the objective legality in administrative proceedings and to represent the public interest of environmental protection in proceedings.34 Apart from participating as a party in administrative proceedings, the Ombudsman for the Environment has many other duties that have more of a ‘soft law-character’. However, those duties and competences vary from state to state and not every Ombudsman has all of the duties mentioned here.35 The Ombudsmen for the Environment are competent to evaluate and provide views on draft statutes, ordinances and other legal norms which effect the environment from an environmental point of view.36 In some Länder they have the right to monitor administrative misconduct and deficits in the interest of the environment. In order to fulfil this duty, they have the right of initiative to remedy the deficits37 or to enter estates or facilities in case of reasonable suspicion of severe environmental nuisance.38 Other duties include the monitoring of compliance with orders in administrative rulings, and court decisions upon request of persons involved in the procedure,39 support and consultation of the respective state, municipalities and citizens concerning environmental issues and questions, as well as providing expert information,40 carrying out mediation in environmental conflicts,41 giving recommendations

32

Sec. 51 Vorarlberg Nature Conservation and Landscape Development Act. Schulev-Steindl, Rechtliche Optionen, p. 25. 34 Cf. chapter IV.1., IV.2.c). 35 Cf. the overview Schulev-Steindl, Rechtliche Optionen, p. 25 f. 36 For example sec. 7 Burgenland Ombudsman for the Environment Act; sec. 4 (5) Lower Austrian Environmental Protection Act; sec. 7 (1) no. 2 Salzburg Ombudsman for the Environment Act. 37 Sec. 4 Burgenland Ombudsman for the Environment Act; sec. 5 Upper Austrian Environmental Protection Act. 38 Sec. 6 Burgenland Ombudsman for the Environment Act; sec. 6. Upper Austrian Environmental Protection Act; sec. 38 Tyrolean Nature Conservation Act. 39 Sec. 7 lit. b) Styrian Act on Institutions for Environmental Protection. 40 Sec. 7 (1) no. 3 Salzburg Ombudsman for the Environment Act; sec. 4 (5) Lower Austrian Environmental Protection Act. 41 Sec. 7 (1) no. 1 Salzburg Ombudsman for the Environment Act. 33

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and advice regarding the improvement of environmental designs and planning,42 or observing the administrative practice concerning the environment.43 Another important duty is to provide information, support and counselling for individuals. In this respect the Ombudsman for the Environment is not only an attorney for the environment, but also an attorney for citizens regarding environmental matters. Individuals, municipalities, or groups of persons can file complaints or applications concerning environmental issues with the Ombudsman.44 A person who is affected by an environmental issue or who has knowledge of an environmental nuisance can address his/her concerns to the Ombudsman for the Environment, who then decides whether or not to take action within his/her competence.45 1. Participation in Administrative Proceedings The most important purpose of the Ombudsman for the Environment is without doubt to represent the protection of the environment as a public interest in administrative proceedings.46 Therefore he/she has standing in administrative proceedings concerning environmental and nature conservation matters. In certain cases, the Ombudsman for the Environment has standing on the federal level and/or on the Länder level. Most importantly under the EIA Act, the Ombudsman has standing in those procedures on the federal level which determine the question of whether the EIA Act applies to a project or not. Naturally, the Ombudsman has standing in the actual EIA procedure itself as well.47 The Waste Act grants standing to the Ombudsman for the Environment in procedures concerning waste treatment facilities. For example, the Ombudsman is a party in procedures in which the Länder governor decides whether a waste treatment facility must be licensed under the Waste Act or whether the facility is an IPPC installation or not,48 as well as in those procedures concerning the licensing of solid waste treatment facilities.49 As a further example, under the Environmental Liability Act, the Ombudsman for the Environment is entitled to request the competent authority to take action when environmental damage occurs.50 If the Ombudsman files a request for action, then he/she is also a party in procedures on 42 Sec. 4 (5) Lower Austrian Environmental Protection Act; sec. 4 (5) Upper Austrian Environmental Protection Act. 43 Sec. 4 (5) Lower Austrian Environmental Protection Act. 44 Sec. 7 lit. a) Styrian Act on Institutions for Environmental Protection; sec. 4 (5) Lower Austrian Environmental Protection Act; sec. 4 (4) Upper Austrian Environmental Protection Act. 45 Cf. chapter V.2.b). 46 Randl, p. 154. 47 Sec. 3 (7) EIA Act; sec. 19 (3) EIA Act. 48 Sec. 6 (6) Waste Act, BGBl. I no. 102/2002 in the version BGBl. I no. 193/2013. 49 Sec. 42 (1) no. 8 and sec. 37 Waste Act. 50 Sec. 11 (1) Environmental Liability Act, BGBl. I no. 55/2009 in the version BGBl. I no. 97/2013.

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remedial actions.51 The Ombudsman for the Environment is competent in the state, in whose territory a project is carried out or environmental damage occurs. The statutes of the Länder grant standing in procedures concerning matters for which the Länder are competent, as set forth in the Austrian Constitution.52 For example, nature conservation, construction-related matters, or land use regulation are issues that lie in the competence of the Länder with regard to legislation and enforcement.53 Generally, the Länder have two different ways of regulating the standing of the Ombudsman in certain administrative proceedings. Some Länder use a ‘catch-all’ clause that grants standing to the Ombudsman in all procedures relating to the environment. Others explicitly enumerate the procedures in which the Ombudsman for the Environment is a party.54 In Lower Austria and Styria, for example, the Ombudsman has standing in procedures that concern a matter in the competence of the Länder and whose object is to avoid serious and permanent adverse effects on humans and the environment.55 In Tyrol, where the Ombudsman, as already mentioned, is only competent for nature conservation issues, he/she has standing in all proceedings concerning nature conservation matters.56 The Viennese Act on Institutions for Environmental Protection, on the other hand, contains a catalogue of all procedures and projects in which the Ombudsman has standing. Those are procedures within the scope of the Nature Conservation Act, the Building Act, the Hunting Act and the Fishing Act.57 In other procedures whose object is to prevent significant and permanent adverse effects on the environment, the Ombudsman has the right to access the files, to participate in the hearing, and to give a statement on the project.58 The Ombudsman can participate in these procedures and is heard, however, he/she is not a party and subsequently cannot appeal against the decision. According to the Upper Austrian Environmental Protection Act, standing is granted to the Ombudsman by the statutes that regulate the environmental matter and the applicable procedure.59 For example, the Ombudsman has standing in procedures concerning construction – with the exception of residential buildings60 – certain nature conservation procedures,61 power plants for the pro51

Sec. 12 Environmental Liability Act. Art. 10 to 15 Austrian Constitution. 53 According to art. 15 of the Austrian Constitution, the Länder have legislation and enforcement in all matters that are not designated in the art. 10, 11 and 12. 54 Cf. Meyer, p. 5. 55 Sec. 5 (1) Lower Austrian Environmental Protection Act; sec. 6 (2) Styrian Act on Institutions for Environmental Protection. 56 Sec. 36 (8) Tyrolean Nature Conservation Act. 57 Sec. 6 (1) Viennese Act on Institutions for Environmental Protection. 58 Sec. 6 (2) Viennese Act on Institutions for Environmental Protection. 59 Sec. 5 (1) Upper Austrian Environmental Protection Act. 60 Sec. 32 (2) Upper Austrian Construction Act, LGBl. no. 66/1994 in the version LGBl. no. 90/2013. 61 Sec. 39 Upper Austrian Nature and Landscape Conservation Act, LGBl. no. 129/2001 in the version LGBl. no. 35/2014. 52

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duction of electricity within the competence of the Länder,62 or Länder and municipal roads.63 Summing up, the Ombudsman has no general right to challenge environmental issues and participate in administrative proceedings. It is only when standing is explicitly granted by law – either by enumerating the relevant procedures or by a ‘catchall’ clause – that the Ombudsman is party to an administrative proceeding and can represent the public interest of environmental protection before the administrative authority. 2. Procedural Position of the Ombudsman for the Environment a) Subjective Right and Standing in Austrian Administrative Law Granting standing to the Ombudsman for the Environment is an exception within the system of access to justice in the Austrian legal order. Austrian administrative law requires a subjective right (subjektives Recht) in order to have standing in administrative proceedings and subsequently to be able to appeal against the ruling of the administrative body to an administrative court of first instance. The most common and accepted doctrine defines subjective rights as legal power, that an individual person derives from a regulation of public law and that entitles her to claim her interests against the state.64 Statutes in administrative law regularly only stipulate the duties of authorities and do not provide subjective rights to individuals. Only if a private interest is recognised as a legally protected interest by the legislator, can a subjective right be derived and subsequently enforced. According to the case law of the Administrative Court65 and the so-called ‘impairment of rights doctrine’ (Schutznormtheorie), a person has a subjective right if a statute does not only protect public interests, but the interests of a specifically concerned person as well.66 Due to the narrow interpretation of subjective rights, access to justice in administrative law is rather limited. Granting standing to parties renders subjective rights enforceable. According to sec. 8 General Administrative Procedure Act, a person who is involved in an activity of an authority by a legal title or legal interest is party to a procedure. Sec. 8 General Administrative Procedure Act does not constitute a subjective right for the parties itself, but refers to the substantive administrative law. These substantive statutes must be interpreted regarding the described impairment of rights doctrine in order 62 Sec. 8 Upper Austrian Electricity Industry and Organisation Act, LGBl. no. 1/2006 in the version LGBl. no. 20/2014. 63 Sec. 31 (3) Upper Austrian Roads Act, LGBl. no. 84/1991 in the version LGBl. no. 90/ 2013. 64 VwSlg 14.750 A/1997; Antoniolli/Koja, p. 283. 65 For example VwSlg 7662 A/1969; VwGH 22. 04. 2004, 2003/07/0125; 22. 10. 2013, 2013/10/0165; 21. 01. 2014, 2010/04/0078. 66 Hengstschläger/Leeb, § 8 para. 6; Thienel/Schulev-Steindl, p. 92; Wessely, p. 147.

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to deduce subjective rights. Some laws explicitly specify persons whose legal interests are recognised by law and are therefore considered to be “parties” in administrative proceedings.67 b) Standing and Environmental Law Due to the fact that access to justice requires a subjective right to be affected, access to administrative and court proceedings regarding environmental issues is very limited in the Austrian legal system. In general, environmental issues are not regarded as interests that entitle an individual to take legal action before administrative authorities or before a court, but as public interests that the administrative bodies have to take care of ex officio.68 Individuals, who may have an interest in environmental protection because they are environmentally conscious or who may be affected by environmental pollution, but not differently than the general public, normally have no legal possibility to defend their interests and concerns. This is the case as regards air pollution, for example.69 It is only if they are considered as neighbours of an industrial facility or a construction site, for example, do individuals have access to administrative proceedings and/or to courts. Under the Industrial Code, neighbours of an industrial facility are parties in the permission procedure. They can claim that the facility constitutes a threat to human life and health as well as to property, or that the facility causes nuisances as a result of odour, noise, smoke, etc.70 On the other hand, a person who is affected by air pollution has no general right to ask the competent authority to take measures to prevent the exceeding of limit values.71 c) Procedural Rights of the Ombudsman for the Environment As an exception to the impairment of rights doctrine, the Ombudsman for the Environment is entitled to represent concerns and interests of the environment as a public interest in administrative proceedings. The Ombudsman can challenge compliance with environmental laws and regulations in an administrative proceeding without being directly and personally affected. According to sec. 19 (3) EIA Act, in an EIA procedure the Ombudsman is entitled to claim the observance of legal provisions that serve to protect the environment or the public interests in their competence as a ‘subjective right’ and to complain to the Federal Administrative Court of first instance and similarly to the (High) Administrative Court. According to the wording 67 For example sec. 19 EIA Act; sec. 42 Waste Act; sec. 19 (4) Forestry Act, BGBl. no. 440/1975 in the version BGBl. I no. 189/2013. 68 Cf. for example Mayer, p. 115. 69 Cf. Giera, p. 162 et seq. 70 Sec. 74 (2) no. 1 Industrial Code, BGBl. no. 194/1994 in the version BGBl. I no. 60/ 2014. 71 However this right can be derived from union law and the national authorities are obliged to interpret national legislation in conformity with union law or directly apply the Directive 2008/50/EC on clean air for Europe. Cf. Klinger/Giera, p. 233 et seq.

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of sec. 19 (3) EIA Act, the Ombudsman has a ‘subjective right’ (a term which other statutes use as well72) to observe the objective legality in administrative or court proceedings. However, according to the case law of the Administrative Court and the Constitutional Court as well as to legal scholars, the Ombudsman of the Environment does not have a ‘real subjective right’; instead, the Ombudsman is considered to be an administrative party (Formalpartei), which does not have and exercise rights, but rather duties or competences.73 Such administrative parties do not enforce their own subjective rights, but observe the objective legality of the procedure and represent public interests.74 They only have procedural rights without a corresponding substantive right, such as the right to appeal, the right to access files or the right to be heard.75 The Constitutional Court found that the Ombudsman of the Environment has no ‘real subjective right’ because a subjective right requires a personal and private interest, which the Ombudsman does not have since he/she is not personally affected; instead, the Ombudsman represents an interest of the general public. The Ombudsman does not exercise a right, but a competence.76 Due to the fact that the Ombudsman for the Environment is considered to be an administrative party without ‘real subjective rights’, he/she may not file an appeal to the Constitutional Court. According to the Constitutional Court, the ability to file an appeal against a decision of an administrative court of first instance requires the alleged infringement of a constitutionally guaranteed subjective right. Before the Constitutional Court, the observance of environmental provisions – in other words the objective legality of the procedure – cannot be enforced.77 Instead, the Ombudsman for the Environment only has the right to appeal to the administrative courts of first instance and subsequently to file a revision to the (High) Administrative Court.78

72

For example sec. 3 (1) Burgenland Ombudsman for the Environment Act. VfSlg. 17.220/2004; VwGH 22. 03. 1993, 93/10/0033; 05. 04. 2004, 2004/10/0048; 26. 02. 2007, 2006/10/2006; 25. 04. 2013, 2012/10/0096. 74 Cf. Hengstschläger/Leeb, § 8 para. 12. 75 Cf. Randl, p. 155. 76 VfSlg. 17.220/2004; critically Thallinger, p. 607; Schulev-Steindl, VfGH-Beschwerdelegitimation, p. 148. 77 VfSlg. 17.220/2004. 78 Sec. 19 (1) no. 3 EIA Act; sec. 3 Burgenland Ombudsman for the Environment Act. 73

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VI. The Ombudsman for the Environment and the Aarhus Convention 1. Implementation of the Aarhus Convention into Austrian Legislation Austria ratified the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) in 2005.79 Since then, it has amended several statutes to implement the Convention and the Directive 2003/35/EC providing for public participation80, which transposes parts of the Aarhus Convention into EU law, into the national legislation. Standing was granted, for example, to NGOs in EIA procedures under the EIA Act81 or under the Waste Act regarding IPPC-installations.82 While art. 9 (2) AC has not posed any major problems for the Austrian legislator, art. 9 (3) AC has not yet been fully implemented to this day:83 NGOs and individuals do not have standing in a wide range of environmental proceedings: NGOs only have standing in EIA and IPPC-installation procedures as well as in environmental liability law to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.84 Standing for individuals is also very limited; usually individuals only have standing when they are considered to be neighbours, which leads to restricted access to administrative authorities in various matters, for example in proceedings concerning the permission of roads or railways85 or in proceedings concerning permissions in the field of water law.86 While standing for NGOs is a relatively new aspect in Austrian administrative law, the Ombudsman for the Environment has a long tradition and is a well-established instrument to enforce environmental law. When the EIA Act was released in 1993, standing had already been granted to the Ombudsman, who has played an im79

BGBl. III 2005/88. Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, OJ L 156, p. 17 in the version OJ L 26, p. 1. 81 BGBl. I no. 2004/153; cf. RV 648 BlgNr. 22.GP, p. 3 et seq., 11 et seq. 82 BGBl. I no. 2004/155; cf. RV 672 BlgNr. 22.GP, p. 3, 17. 83 Cf. ACCC/C/2010/48 (Austria) 16. 12. 2011; Letter of formal notice C (2014) 4883 final. 84 This was criticised by the Aarhus Convention Compliance Committee: ACCC/C/2010/ 48 (Austria), para. 67 et seq. 85 Sec. 7a Federal Roads Act, BGBl. no. 286/1971 in the version BGBl. I no. 96/2013; sec. 31e Railway Act, BGBl. no. 60/1957 in the version BGBl. I. no. 205/2013. 86 Sec. 102 and sec. 105 (1) lit. a) Water Act, BGBl. no. 215/1959 in the version BGBl. I no. 54/2014. 80

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portant role in EIA procedures since then.87 When Austria implemented the Directive 2004/35/EG on Environmental Liability88, it granted the right to request the competent authority to take action when environmental damage occurs not only to NGOs, but also to the Ombudsman for the Environment, something which was not required by the Directive.89 2. The Ombudsman as an Implementation Measure Regarding the implementation of the AC, especially as to art. 9 (3) AC, the Austrian government strongly emphasized the importance of the already existing institution of the Ombudsman for the Environment. Thus, the Austrian government argued before the Aarhus Convention Compliance Committee (ACCC) and before the European Commission that the institution of the Ombudsman for the Environment would be one possible measure to implement the AC. The Ombudsman, among other remedies – would be one remedy provided by the Austrian system that ensured Austria’s compliance with art. 9 (3) AC.90 a) A Member of the Public? Under the AC, access to justice is provided for the “public”, which is defined as “one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups”.91 It is questionable whether the Ombudsman for the Environment is part of the public as defined and understood by the AC. The Austrian Ombudsmen for the Environment, however, understand themselves as members of the public as defined by the AC and demand standing in all environmental procedures within the scope of the Convention.92 Nevertheless, there is a problem with qualifying the Ombudsman for the Environment as a member of the public, namely the fact that Ombudsmen are administrative organs that are part of the public administration.93 It is the duty of the Ombudsman for the Environment to represent public interests in administrative proceedings and not to defend their own private interests. Thus, they do not have a sphere of interests of their own, which can be clearly distinguished from the

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Cf. Randl, p. 147. Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143, p. 56 in the version OJ L 178, p. 66. 89 Sec. 11 and 12 Environmental Liability Act. 90 ACCC/C/2010/48 (Austria) 16. 12. 2011; C (2014) 4883 final. 91 Art. 2 (4) AC. 92 Donat/Frühstück/Kostenzer/Lins/Pöllinger/Rossmann/Schnattinger/Wiener, p. 196. 93 Cf. Schulev-Steindl, Rechtliche Optionen, p. 29. 88

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state sphere of interests.94 Due to their integration into the administration, their actual duty is not to represent the interests of civil society, but primarily to exercise public duties and competences. Furthermore, they de facto lack full independence from the Länder governments. For these reasons, they cannot be considered to be members of the public as defined by the AC.95 b) Promoting the Objectives of the Aarhus Convention Nevertheless, Austria tried to justify its narrow access to justice before the ACCC by pointing to the Ombudsman for the Environment. It alleged that members of the public – including NGOs – who do not have a legal title or interest and therefore do not have standing, may alternatively become a party through the Ombudsman for the Environment. They can ask the Ombudsman to put forward their claims.96 The ACCC did not however follow the Austrian argument. Firstly, the Ombudsman for the Environment does not have standing in a wide range of procedures relating to the environment. Secondly, the Ombudsman has discretion whether or not to bring a case to court, even if a member of the public does request it.97 In a recent letter of formal notice from July 2014, the European Commission stated that Austria was not in compliance with art. 9 (3) AC. The Commission also rejected the argument of the Austrian government that the Ombudsman for the Environment was an alternative way to guarantee access to justice and thereby environmental protection through the courts. In the first place, the AC did not provide for a guardian who protects the interests of the public. Instead, the objective of the Convention was to grant direct access to justice to the representative of the public. Even if the Commission agreed that the institution of the Ombudsman was an effective, additional instrument for protecting the environment, then the Ombudsman would still not be a sufficient measure to implement the AC and to fulfil the requirements of effet utile in European Environmental Law.98 The reasoning of the ACCC and the European Commission must be followed. The Ombudsman for the Environment does not have standing in procedures of many sectoral laws; it lies in his/her discretion whether or not to bring a case before an administrative body or an administrative court. The AC does not provide for a guardian or an ombudsman, nor does the Directive 2003/35/EC; instead the two acts provide direct access to justice for the public. 94 Cf. VwGH 1. 7. 2005, 2003/03/0082; Grabenwarter, p. 409 et seq; Schulev-Steindl, Rechtliche Optionen, p. 29. 95 Schulev-Steindl, Rechtliche Optionen, p. 29. She argues that the Ombudsman for the Environment cannot or rather only in very limited terms be qualified as a member of the public. Contrary Randl, p. 148. Cf. also Thallinger, p. 615. 96 ACCC/C/2010/48, (Austria) 16. 12. 2011, paras 36, 40. 97 ACCC/C/2010/48, (Austria) 16. 12. 2011, para. 74. 98 C (2014) 4883 final, p. 10.

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However, without a doubt, the Ombudsman for the Environment promotes the objectives of the AC. In particular, the Ombudsman expands the narrow access to justice to some extent by participating in administrative and court proceedings and by taking on the claims of individuals. In general, the activities of the Ombudsman for the Environment support the intention of the AC to ensure environmental protection and thereby the right to live in a healthy environment.99 Art. 5 (3) AC provides the possibility for parties to maintain or introduce measures providing for broader access to information, more extensive public participation in decision-making and wider access to justice in environmental matters. In the light of this provision, the Ombudsman for the Environment can be qualified as an implementation measure as his/her work promotes the intention of the AC by contributing to an effective implementation and enforcement of environmental law, thereby protecting the environment.100 Due to the fact that the AC does not provide for a guardian that takes care of environmental matters, the establishment of a specialized institution can be qualified as an implementation measure that goes beyond the requirements of the AC.101 Nevertheless, the Ombudsman alone is not sufficient to implement the AC: as a governmental organisation, the Ombudsman for the Environment cannot be regarded as a ‘member of the public’. Furthermore, the rights of the Ombudsman are limited and they do not have legal standing across a wide range of environmental matters. In order to ensure a full and proper implementation of the AC, Austria has to grant standing to NGOs in all procedures concerning environmental issues and it also has to open access to justice for individuals as well.102 Even if the Ombudsman for the Environment were an appropriate measure for implementing the AC, the now existing system would not be sufficient because of the exclusion of the Ombudsman from a long list of environmental proceedings. References Antoniolli, Walter/Koja, Friedrich: Allgemeines Verwaltungsrecht, 3rd ed., 1996. Donat, Martin/Frühstück, Hermann/Kostenzer, Johannes/Lins, Katharina/Pöllinger, Ute/Rossmann, Harald/Schnattinger, Andrea/Wiener, Wolfgang: Stellungnahme zum dritten Österreichischen Umsetzungsbericht zur Aarhus-Konvention, in: Recht der Umwelt, vol. 5, 2013, p. 196 et seq. Giera, Ulrike: Rechte Einzelner im europäischen Umweltrecht, Doctoral Thesis, University of Vienna, 2014. Grabenwarter, Christoph: Die Beteiligung von Umweltorganisationen, Bürgerinitiativen und Gebietskörperschaften am Verwaltungsverfahren, in: Ulrich, Silvia/Schnedl, Gerhard/Pirstner-Ebner, Renate (eds.): Funktionen des Rechts in der pluralistischen Wissensgesellschaft, 2007, p. 385 et seq. 99

Art. 1 AC. Cf. Schulev-Steindl, Rechtliche Optionen, p. 29. 101 Schulev-Steindl, Rechtliche Optionen, p. 29. 102 C (2014) 4883 final; Giera, p. 129. 100

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Hengstschläger, Johannes/Leeb, David: Kommentar zum Allgemeinen Verwaltungsverfahrensgesetz I, 2nd ed., 2014. Klinger, Remo/Giera, Ulrike: Tu felix, Deutschland? Das europäische Recht auf saubere Luft und seine Umsetzung im nationalen Recht Österreichs und Deutschlands, in: Recht der Umwelt, vol. 6, 2014, p. 229 et seq. Kroiss, Fritz: Die Verbandsbeschwerde im Umweltrecht – neue Impulse für Österreich durch die Aarhus-Konvention, in: Recht der Umwelt, vol. 3, 2001, p. 87 et seq. Mayer, Heinz: Ein „Umweltanwalt“ im österreichischen Recht, in: Juristische Blätter, vol. 5/6, 1982, p. 113 et seq. Meyer, Marlies: Die Landesumweltanwaltschaften, in: Recht der Umwelt, vol. 1, 2003, p. 4 et seq. Milieu, Summary Report on the inventory of EU Member States’ measures on access to justice in environmental matters, available at: http://ec.europa.eu/environment/aarhus/study_access. htm (last visited in August 2014). Oberndorfer, Peter: Partizipation an Verwaltungsentscheidungen in Österreich, in: Die Öffentliche Verwaltung, vol. 15/16, 1972, p. 529 et seq. Pindur, Herb: Eine Strategie für den österreichischen Umweltschutz, 1980. Popper, Hans: Partizipation an behördlichen Umweltmaßnahmen, in: Fröherl, Ludwig/Pindur, Herb (eds.): Ausgewählte Rechtsprobleme des Umweltschutzes, 1976, p. 85 et seq. Randl, Heike: Der Umweltanwalt im UVP-Verfahren, in: Ennöckl, Daniel/Raschauer, Nicolas (eds.): UVP-Verfahren vor dem Umweltsenat, 2008, p. 147 et seq. Raschauer, Bernhard: Allgemeines Verwaltungsrecht, 2nd ed., 2009. Raschhofer, Carolin: Die Rechtsstellung des Umweltanwalts am Beispiel des UVP-G 2000, in: Recht der Umwelt, vol. 3, 2004, p. 90 et seq. Schnedl, Gerhard: Der Umweltanwalt als Instrument “mittelbarer Bürgerbeteiligung” – Ein kritischer Überblick über die Möglichkeiten der Repräsentation von Umweltinteressen im Verwaltungsverfahren, Doctoral Thesis, Karl Franzens University Graz, 1990. Schulev-Steindl, Eva: VfGH-Beschwerdelegitimation des Umweltanwaltes und anderer Organparteien nach dem UVP-G verfassungswidrig, in: Recht der Umwelt, vol. 4, 2004, p. 148 et seq. – Instrumente des Umweltrechts – Wirksamkeit und Grenzen, in: Ennöckl, Daniel/Raschauer, Nicolas/Schulev-Steindl, Eva/Wessely, Wolfgang (eds.): Festschrift für Bernhard Raschauer, 2013, p. 527 et seq. – Rechtliche Optionen zur Verbesserung des Zugangs zu Gerichten im österreichischen Umweltrecht gemäß der Aarhus-Konvention (Artikel 9 Abs 3), 2009. Stone, Christopher: Should Trees Have Standing? Toward Legal Rights for Natural Objects, in: Southern California Law Review, vol. 45, 1972, p. 450 et seq (reprinted in: Keller, David (ed.), Environmental Ethics, 2010, p. 110 et seq). Thallinger, Gerhard: Subjektive Rechte und die Beschwerdelegitimation des Umweltanwalts vor dem VfGH, in: Zeitschrift für Verwaltung, vol. 5, 2004, p. 607 et seq. Thienel, Rudolf/Schulev-Steindl, Eva: Verwaltungsverfahrensrecht, 5th ed., 2009.

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Wessely, Wolfgang: Eckpunkte der Parteistellung, 2008. Wimmer, Norbert: System des österreichischen Umweltschutzrechtes, in: Bundesministerium für Gesundheit und Umweltschutz (ed.): Beiträge zum Umweltschutz 1972 – 1974, 1974, p. 77 et seq.

Part IV An Example for Best Practises in Environmental Participation

Environmental Management: the Environmentally Equipped Industrial Area Model By Stefano Duglio, Maria Beatrice Pairotti and Riccardo Beltramo Abstract Il lavoro intende analizzare alcuni esempi di sforzi verso uno sviluppo industriale più sostenibile, partendo dalla teoria dell’ecologia industriale, diffusa a livello internazionale nelle forme di parchi Eco-industriali e focalizzando poi l’attenzione su una forma particolare di area industriale, nata in Italia attraverso una legge del 1998 e denominata Area Produttiva Ecologicamente Attrezzata (APEA) nella quale coesistono più imprese che dialogano fra loro e all’interno della quale si potrebbero adottare alcuni assunti tipici dell’ecologia industriale. Il lavoro si concentra sulla modalità di gestione di questo modello di area con particolare riferimento al controllo degli aspetti ambientali in relazione alla normativa cogente. In particolare, la necessità di definire un sistema di gestione d’area, uno dei requisiti fondamentali introdotti per legge, trova risposta nello strumento del Sistema di Gestione Ambientale, come introdotto dal Regolamento Europeo EMAS.1 Esso, oltre a supportare l’impresa nella gestione ambientale dei propri processi, prevede la redazione di una Dichiarazione Ambientale, attraverso la quale il cittadino ha la possibilità di conoscere il profilo ambientale dell’organizzazione, la legislazione applicabile e gli obiettivi di miglioramento. Inoltre, considerando che un’Area Produttiva Ecologicamente Attrezzata insiste su di una porzione di territorio, sulla base di alcune esperienze locali si discute sull’estensione del sistema ambientale verso la valutazione dell’incidenza sul paesaggio, attraverso l’implementazione di un Sistema di Gestione Ambiental-Paesaggistico (SGAP), che, integrando quanto espresso dalla Convenzione Europea sul Paesaggio, consenta una partecipazione attiva del cittadino ai processi decisionali.

I. Introduction Enhancing efforts towards more sustainable development is now a common universal goal. The latest data published by the Intergovernmental Panel on Climate Change (IPPC), an international body founded by the United Nations Environmental Program (UNEP) and the World Meteorological Organization (WMO), highlights the critical situation we will have to face in the coming years. According to the Panel: “global mean temperatures will continue to rise over the 21st century if green1

European Regulation no. 1221, European Union Official Journal of 25 November 2009.

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house gas (GHG) emissions continue unabated […]” and in the field of climate change there could be an increase in long term temperature levels in the range of 1˚C to more than 5˚C with consequences that are difficult to foresee.2 This is not a recent issue, however. Since the mid-1970s, the political, economic and academic worlds have increasingly been interacting in order to define programs, objectives and actions useful to achieve the goal of a more eco-efficient development in an inclusive society. Starting from 1987, with the publication of the well-known Brundtland Report containing the definition of sustainable development3, the last 30 years have produced several documents, resolutions, protocols and charters, which have been published in order to increase the commitment of the political world as well as the awareness of the public. In this general context, great attention has been paid to the industrial sector, allowing the launch and development of the Industrial Ecology Theory in the late 1980s, which introduced ideas to reduce the impact of industrial activities on the environment, beginning with analysing the natural system. It is widely known that due to the definition of Eco Industrial Parks (EIP) industrial areas which actively monitor the reduction of their environmental impacts permit a more sustainable industrial production. One of the first of these areas, located in Kalundborg in Denmark, has become a sort of model on which other EIPs have been developed, starting from government initiatives or on the part of the industrial areas themselves. In Italy, the most recent discussion in this field has included the creation of a new framework: the Ecologically Equipped Industrial Area (EEIA), introduced by a specific national regulation: the no. 112 issued in 1998.4 This paper focuses on the concept of the EEIA and its characteristics. Specific attention is paid to the relationship between the EEIA, its general management and applicable legal requirements, by means of specific environmental tools, useful to communicate the environmental data to stakeholders on the one hand, and to facilitate public participation on the other hand.

II. Industrial Ecology and Eco Industrial Park (EIP) Eco Industrial Parks (EIPs) can be defined as a “community of manufacturing and services companies seeking enhanced environmental and economic performance through collaboration in managing environmental and resource issues including energy, water and materials […]. Through collaboration, this community can become 2

For details: IPPC, p. 1035. According to the Brundtland Report, sustainable development can be defined as the “[…] development that meets the needs of the present without compromising the ability of future generation to meet their own needs” WCED, 1987, p. 43. 4 Official Journal no. 92, 21 April 1998. 3

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an industrial ecosystem”5. The EIPs are, in fact, one of the main applications of industrial ecology, a part of sustainability sciences and can be explained as a multidisciplinary framework that links the industrial system with the natural one with the aim of minimizing the industrial impact on the environment. It is based on the idea that industrial areas should be designed to resemble natural ecosystems in order to use energy, water and material resources in an optimal way, minimizing waste.6 Ayres developed the comparison between the natural and the industrial systems using the concept of industrial metabolism that represents “the whole integrated collection of physical processes that convert raw materials and energy, plus labour, into finished products and wastes in a, more or less, steady-state condition”7. Following the ideas of Ayres, it is necessary to develop different approaches to the existing problems of pollution: for instance, as far as waste is concerned, disposal does not represent the right solution, considering that it is not an ultimate solution. An improved option can be identified in the closing cycle of production, which reproduces the operating model of a natural system. Waste resulting from a production cycle could become raw material for another after a process of recycling (if necessary). The reduction of raw materials and energy consumption is one of the first results of this theory: a general reduction of the environmental impact could be obtained in the area where these actions are applied and also a minimization of waste management. The whole system could obtain positive effects, for instance: in the reduction of transport and their consequential pollution and may also strengthen links of cooperation among companies. Frosch and Gallopoulos introduced the concept of an industrial ecosystem in analogy with the natural system.8 When analysing a natural system, it is possible to observe that all the materials used represent raw materials for other organisms in a sort of closed cycle: they do not however represent waste but are used as materials and energy necessary for other processes. Following the principles of industrial ecology, an industrial system could reproduce this operation and reduce the needs of materials and energy and the consequent production of waste. To create such a performing system is a difficult exercise: yet, using the theory of industrial ecology, it could be possible to adopt some principles to plan industrial areas, which could better integrate themselves into the environment, where materials and energy are exploited in a comprehensive way, thereby reducing dependency from outside processes and producing less waste. The results of the studies carried out on the area of Kalundborg have been ‘exported’ into other European countries and also outside Europe. Some examples of other areas include: the Styria Region (Austria, EU), Value Park (Germany, EU), London5

Sendra/Gabarell/Vicent, p. 1706. Wang/Shi/Hu/Xu/Sun, p. 145; Zhu/Lowe/Wei/Barnes, p. 32. 7 Ayres, p. 3. 8 Frosch/Gallopoulos, p. 144 – 145. 6

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derry (New Hampshire, USA), Burnside Park (Nova Scotia, Canada), Kwinana Industrial Park (Australia), and Ulsan (Korea).9

III. Management of Industrial Areas in Italy In Italy, the effort towards a more sustainable industrial development stems from law. The model chosen to develop a new kind of sustainable industrial area: the Ecologically Equipped Industrial Area (EEIA), entails the following of specific rules as to environmental management and planning. These rules have been introduced by national law and are regulated at local level. The areas could be new ones, or even more beneficially; the renewal of brown fields. The legislative decree that introduced the concept of the EEIA is no. 112 of 199810 establishing that each region can regulate the management of the EEIA separately. This law specifies the possibility of reducing the quantity of compliance for companies and the following common features for all areas: 1. Presence of a general manager in the area; 2. Common and shared facilities; 3. Realization of a common environmental management system; 4. Involvement of local public bodies in making decisions about areas.11 These four pillars are the core ideas of EEIAs. The general manager represents the interests of all the bodies involved in an industrial area. They have different tasks, starting from facilities and environmental aspects management (its role is fundamental in the establishment of a common environmental management system); the general manager could include: private or public components or companies’ exponents, to represent the interests of local bodies involved. The aim is to safeguard all the interests and to assure the best management of the area. The participation of governments of the towns involved is also envisaged. The participation of citizens, by means of their representatives in the decisions regarding the industrial areas, leads to a better integration of the area itself in the territory. The realisation of common facilities and services, like logistical means of operation for materials, people or waste disposal, contributes to reducing the impact of industrial activities, to creating synergies among companies, and to improving the environmental and social image of the industrial area. Following these general principles, each region can intervene on this matter by means of its own rules: some regions have prepared their guidelines to allow indus9

Mathews/Tan, p. 446; Beltramo, Dai Parchi eco, p. 20 – 66. Official Journal no. 92, 21 April 1998. 11 Vesce/Pairotti/Gianotti, p. 1; Regione/Romagna/Rete (2010), p. 8 – 13; Cariani, p. 41 – 78; Beltramo/Vesce/Caffa (2010), p. 192; Vesce/Beltramo/Caffa, p. 15. 10

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trial areas to change towards this new kind of area. The Marche Region was the first to introduce the guidelines for EEIAs in 2005 by Regional Law no. 16 and an update of this document has been recently adopted.12 In the previous version, the Region had introduced two documents, one as to good practices for environmental management of this kind of area and one as to pilot cases in the regional territory. The province of Bologna (located in the Emilia Romagna Region) published its guidelines about EEIAs in the Regional Committee Resolution no. 407/2006, which was updated in 2008.13 The Piedmont Region also intervened in the field of EEIAs by introducing guidelines published by the Regional Committee Resolution no. 30 – 11858 in 2009.14 Finally, the Tuscany Region also published guidelines in a Regional Committee Resolution 1245 in 2009 after other normative activities in the previous years.15 In 2013, Sardinia introduced its rules by the Regional Resolution no. 4/2.16

IV. Management of the EEIA 1. Environmental Management System (EMS): a Tool for the Management of the EEIA One of the strong points in applying the EEIAs is represented by the necessity to realise a specific system able to manage the environmental aspects of the area. Although the guidelines of the different Italian regions contain some differences and do not completely explain how the systems should be built, in all cases however, they all start by drafting an environmental preliminary analysis in order to define the environmental objectives contained in the programme. These two documents, and more specifically the environmental preliminary analysis, also represent the basis of the Environmental Management Systems (EMS), implemented in accordance with international standards i. e. ISO 14001: 2004 Standard or the European Regulation Eco-Management and Audit Scheme (EMAS)17. In confirmation of this last assertion, some of the guidelines quoted for instance explicitly refer to these tools for the creation of the system and have indicated that both tools provide a good knowledge of the area and a useful planning of all the environmental actions to be undertaken in the future. Considering that more than one company is involved, Tuscany underlines that it is necessary to refer to specific documents re12 Available at: www.ambiente.regione.marche.it/ambiente/areeproduttiveecologicamenteat trezzate.aspx. 13 Available at: www.provincia.bologna.it/imprese/Engine/RAServeFile.php/f/APEA/Li nee_guida_APEA_Ott2008.pdf; Bollini/Borsari/Stacchini, p. 75 – 76. 14 Available at: http://www.regione.piemonte.it/territorio/dwd/documentazione/pianificazi one/LineeGuidaAPEA.pdf. 15 Gallo/Gianfrate, p. 1006 – 1014. 16 Available at: http://www.sardegnaambiente.it/documenti/18_329_20130226164433.pdf. 17 European Regulation no. 1221, European Union Official Journal of 25 November 2009.

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garding EMAS, as the guidelines introduced in Tuscany by the Life Project Pioneer Paper Industry Operating in Network: an Experiment for EMAS Revision18 and the document referring to EMAS for production areas with similar features.19 Piedmont introduced a range of levels to obtain the title of EEIA: the starting point is the adoption of an EMS, the references used are both the ISO 14001 Standard or the EMAS Regulation. The next steps are the implementation of other systems concerning safety, land attention, and social responsibility. These systems must be connected and integrated with each other. Sardinian guidelines refer to EMAS for the definition of environmental preliminary analysis. In both tools i. e. ISO 14001: 2004 and EMAS, the EMSs are created in accordance with the Deming Cycle approach that divides the system into four phases: Plan, Do, Check and Act.20 Without focusing on the details of the implementation of EMSs, a brief overview of the strong points of the system may help to understand the importance of the tool, especially when it is applied to the management of an EEIA and meets the environmental legal requirements. The starting point is represented by the Environmental Preliminary Analysis (EPA). Due to this instrument, the organisation takes into account the environmental implications of its processes and the applicable legal requirements. Moreover, attention is paid to evaluating the relevance of the environmental aspects, and a procedure specifically aimed at identifying and checking the regional and national legislation should be created (Plan Phase). The Do Phase is dedicated to the implementation of all the procedures necessary for implementing the system (communication, training, documents, etc.), while in the Check Phase, the organisation should verify the correct implementation of the system and once again, continuous respect of the law.21 Lastly, the Act Phase concentrates on the evaluation of the system and the identification of the future strategies and objectives.22 As already mentioned, the ‘weight’ of the environmental legislation in the implementation of an EMS is fundamental. The legal requirements are taken into account at three different levels in an EMS: the preliminary analysis, the Plan and the Check Phases, and compliance with all environmental legal requirements, which is the conditio sine qua non for being certified.

18

LIFE03 ENV/IT/00042, available at: http://ec.europa.eu/environment/life/project/Pro jects/index.cfm?fuseaction=search.dspPage&n_proj_id=2379&docType=pdf. 19 Comitato per l’Ecolabel e per l’Ecoaudit Posizione del Comitato per l’Ecolabel e per l’Ecoaudit sull’applicazione del Regolamento EMAS sviluppato in ambiti produttivi omogenei approvata dalla Sezione EMAS del Comitato per l’Ecolabel e per l’Ecoaudit il 28. 01. 2005. 20 As reported in a recent essay by Beltramo/Duglio/Peira/Gerbino, p. 20. 21 European Regulation no. 1221, European Union Official Journal of 25 November 2009. 22 Gonzáles-Benito/Gonzáles-Benito, p. 135; Perotto/Canziani/Marchesi/Butelli, p. 518; Beltramo/Duglio/Peira/Gerbino, p. 20 – 21.

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For this reason, EMSs have been used by all the kind of organisations (enterprises as well as public bodies) since their first publication (1995 for EMAS and 1997 for ISO 14001: 2004), as several authors show in their studies focused on the motivations and benefits from the adoption of EMSs.23 The application of EMS into the context of EEIAs should be a strategic phase in the development of the same EEIAs as it allows it to: (1) Systemise environmental aspects among productive firms that produce various goods or provide services; (2) facilitate exchange among enterprises. Such an action should involve a decrease in the amount of waste production as well as the consumption of electricity and/ or non-renewable energy sources (gas and oil); and (3) guarantee the respect of legal requirements by all the organisations involved in the EEIA, with a consequently positive repercussion in terms of safety for the citizen. In addition, if the adoption of both the ISO 14001 and EMAS guarantee the aforementioned objectives, in the second case, the EEIA should also compile and communicate the Environmental Declaration. The Environmental Declaration, which is not provided by ISO 14001, communicates to stakeholders – in primis the citizens – all the necessary information related to the environmental system – processes, environmental implications, legal requirements, and objectives. This fosters the implementation of one of the ‘three pillars’ of the AC i. e., the access to information by the public. 2. From the EMS to the Environmental and Landscape Management System (ELMS) The main characteristic of EEIAs is that it is an industrial area in which different kinds of enterprises can cooperate in order to share facilities and to improve the industrial ecology issues. The presence of a relatively wide area, depending on the number and the size of the single enterprises involved, is a characteristic that should be taken into account when implementing the system. During the creation of new areas as well as the permutation of ‘brown areas’ into EEIAs, both the environmental and territorial aspects should be taken into consideration: these aspects are not strictly related to the single company, but derive from the sum of activities of the EEIAs with implication on the urban development planning and landscape. According to this last assertion, and starting from the assumption that an industrial area could also affect the landscape, the Piedmont Region guidelines suggest that an Environmental and Landscape Management System could be adopted by the general 23 Morrow/Rondinelli, p. 165 – 166; Chang/Wong, p. 489 – 490; Gavronsky/Ferrer/Paiva, p. 91 – 92.

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manager of the area. The Environmental and Landscape Management System (ELMS) can be defined as an integrated system merging from the EMAS Regulation (CE no. 1221/2009) and the European Landscape Convention (ELC).24 The concept of the ELMS was born in 2006 thanks to the Project for the creation and registration of an Environmental-Landscape Management System implemented for the Unione di Comuni Colline di Langa e del Barolo in the north-west area of the Piedmont Region in Italy.25 With the ELMS, the classical Environmental Management System enhances its aim to evaluate the impact of the activities on the landscape. The main aim of the ELC, published in 2001 in Florence, is the promotion and preservation of the landscape by correct territorial planning (Council of Europe, 2000). The ELC highlights the necessity of citizens’ awareness, and these awareness-raising activities can be interpreted as a form of external communication and public participation26, which is the ‘second pillar’ of the AC. In the ELMS, the evaluation and preservation of the landscape is carried out by means of the following three tools: (1) a punctual evaluation of the legal compliance related to the urban and/or rural development planning; (2) application of the BLM method for evaluating the quality of landscape.27 BLM is based on the division of the territory into discrete units, identifying landscape units in accordance with common visual characteristics, and on a system for rating the quality of each of these units related to determining components. Thanks to its adoption, it is possible to evaluate the conformation of the landscape connected to territorial planning regulations adopted in the areas investigated; and (3) application of a set of specific indicators: fragmentation index, Landscape Ecomosaic and Biological Territorial Capacity.28

V. Conclusions The need for a more sustainable industrial development is shared at international and national level. In Italy, a specific law introduced rules as to the management of new industrial areas as well as existing areas, aims at improving environmental management.

24

ETS176 European Landscape Convention, 20. 10. 2000. The results of this action are contained in Beltramo/Duglio/Quarta. 26 Beltramo/Quarta, p. 20. 27 BLM has been developed by the American Bureau of Land Management for the planning of natural resources in 1980. It applies to several Municipalities in the Piedmont Region, Italy, contained in Beltramo/Duglio/Quarta, p. 251 – 157. 28 Their analysis and application are reported in Beltramo/Duglio/Quarta, p. 137 – 150. 25

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The Ecologically Equipped Industrial Areas (EEIAs) are based on some specific pillars. The first of these introduces the idea of a common EMS of the area. This system allows the implementation of a set of rules able to respect environmental legal requirements, thanks to the management of the environmental aspects and impacts. The ISO 14001: 2004 standard and the European Regulation EMAS represent useful tools to realise this system in the EEIA context, as introduced by Italian law. In addition, starting with the environmental issue, the goal could become broader to include safety, social and landscape considerations by adopting integrated tools. In this work, we speculate on the possibility to extend the environmental management to the protection of landscape, following the principles of the Environmental and Landscape Management System, for the management of EEIAs. Another innovative aspect in the plan of EEIA is the engagement of citizens in the management body of the area: the possibility to participate in the management process by representatives, having the opportunity to follow and intervene in environmental issues, assures a higher level of attention to environmental impacts of industrial activities. The possibility of information, the opportunity to be involved in decisions, and the guarantee of compliance with legal requirements are key factors that contribute to the improvement of this idea of industrial areas as well as to respect for the ‘two pillars’ of the AC – access to information and public participation in decision-making. In fact, these characteristic should allow EEIAs to be accepted by the citizens as the framework defined in this kind of area offers the opportunity to connect the interests of different stakeholders with the common aim of reducing the impact on the territory. References Ayres, Robert: Industrial metabolism: work in progress, in: NSEAD Working Paper Series, 1997, p. 1 et seq. Beltramo, Riccardo: Dai Parchi eco – industriali alla definizione del concetto di APEA. Esperienze internazionali e nazionali, 2009. Beltramo, Riccardo/Duglio, Stefano/Peira, Giovanni/Gerbino, Luca: The Environmental Management System: a vector for the territorial development. The experience of the Town of Giaveno (Italy), in: Sikora, Tadeusz/Dziadkowiec, Joanna (eds.): Commodity Science in Research and Practice – Towards Quality – Management Systems and Solutions, 2014, p. 19 – 29. Beltramo, Riccardo/Duglio, Stefano/Quarta, Maria: SGAP – Sistema di Gestione AmbientalPaesaggistico. Una metodologia per la gestione integrata dell’ambiente e del paesaggio, 2009. Beltramo, Riccardo/Quarta, Maria: The Environmental and Landscape Management System, in: Valutazione Ambientale, vol. 12, 2007, p. 19 – 27. Beltramo, Riccardo/Vesce, Enrica/Caffa, Silvia: Ecological Equipped Industrial Areas: experiences compared, in: Journal of Commodities Science, technology and quality, vol. 49 (III), 2010, p. 191 – 217.

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Bollini, Gabriele/Borsari, Luca/Stacchini, Valeria: Le linee guida per la realizzazione delle APEA, in: Arpa Rivista, Aree Produttive Ecologicamente Attrezzate, p. 5 – 6, p. 75 – 76. Bureau of Land Management, Visual Resource Management Program, 1980. Cariani, Roberto (ed.): Eco aree produttive. Guida all’eco-innovazione, alle politiche per la sostenibilità e ai progetti operativi nelle Aree Produttive Ecologicamente Attrezzate (APEA), 2013. Chan, Eric S. W./Wong, Simon C. K.: Motivations for ISO 14001 in the hotel industry, in: Tourism Management, vol. 27, 2006, p. 481 – 492. Council of Europe, 2000, European Landscape Convention, available at: http://conventions.coe. int/Treaty/Commun/QueVoulezVous.asp?NT=176&CM=8&CL=ENG. Frosch, Robert A./Gallopoulos, Nicholas E.: Strategies for Manufacturing, in: Scientific American, vol. 261, 1989, p. 144 – 152. Gallo, Paola/Gianfrate, Valentina: Policies for industrial settlements: a new model of ecologically equipped area, in: Procedia Engineering, vol. 21, 2011, p. 1006 – 1014. Gavronsky, Iuri/Ferrer, Geraldo/Paiva, Ely Laureano: ISO 14001 certification in Brazil: motivations and benefits, in: Journal of Cleaner Production, vol. 16, 2008, p. 87 – 94. Gonzáles-Benito, Janvier/Gonzáles-Benito, Oscar: An analysis of the relationships between environmental motivations and ISO 14001 Certification, in: British Journal of Management, vol. 16(2), 2005, p. 133 – 148. IPCC – Intergovernmental Panel on Climate Change: Climate Change 2013. The Physical Science Basis, 2014. Mathews, John A./Tan, Hao: Progress towards a Circular Economy in China, Journal of Industrial Ecology, vol. 15(3), 2011, p. 435 – 457. Morrow, David/Rondinelli, Dennis: Adopting Corporate Environmental Management Systems: motivations and results of ISO 14001 and EMAS Certification, in: European Management Journal, vol. 2, 2002, p. 159 – 171. Perotto, Eleonora/Canziani, Roberto/Marchesi, Renzo/Butelli, Paola: Environmental performance, indicators and measurement uncertainty in EMS context: a case study, in: Journal of Cleaner Production, vol. 16, 2008, p. 517 – 530. Regione Emilia Romagna, Ervet: Gestione sostenibile delle aree prduttive. Analisi casi studio internazionali, 2009. – Rete Cartesio: Le aree produttive ecologicamente attrezzate in Italia: stato dell’arte e prospettive, 2010. Regione Toscana: L’applicazione della disciplina toscana sulle Aree produttive Ecologicamente Attrezzate, vol. 1 – 2, 2012. Sendra, Cristina/Gabarell, Xavier/Vicent, Teresa: Material flow analysis adopted to an industrial area, in: Journal of Cleaner Production, vol. 15, 2007, p. 1706 – 1715. Vesce, Enrica/Beltramo, Riccardo/Caffa, Silvia: Modelli di gestione ambientale per aree produttive, in: Beltramo, Riccardo/Bazzanella, Liliana/Petrini, Davide: Progettualità architettonica ed organizzativa per le nuove aree industriali: un percorso multidisciplinare verso le APEA, 2010.

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Vesce, Enrica/Pairotti, Maria Beatrice/Gianotti, Francesco: La realtà delle APEA in Italia: verso una linea guida nazionale, Atti del XXVI Congresso Nazionale di Scienze Merceologiche, Pisa, 13 – 15 febbraio 2014. Wang, Zhen/Shi, Lei/Hu, Dan/Xu, Yi/Sun, Dezhi: Pursuing sustainable industrial development trough the ecoindustrial parks, three case studies of China, in: Annals of the New York Academy of Sciences, vol. 1195, 2010, E 145-E 153. WCED – World Commission on Environment and Development: Our Common Future, 1987. Zhu, Qinghua/Lowe, Ernest/Wei, Yuan-an/Barnes, Donald: Industrial Symbiosis in China. A case study on the Guitang Group, in: Journal of Industrial Ecology, vol. 11/1, 2007, p. 31 – 42.

Comparative Conclusions from a German–Italian Dialogue on Participation By Eva Julia Lohse As our venture was a comparative one, it seems fit to conclude with some comparative remarks about the findings of this workshop. Working in panels, we had asked the panellists to take stock and to present their opinion on some questions which are represented by the headings of the following sections. Recurring to those presentations we would like to do the same and add some of our observations on the differences and communalities in the implementation process.

I. The Theoretical Framework for Environmental Rights: Substance or Procedure – Collective or Individual Interests All panels were centred on the following recurring questions: ‘out of which legal reasons should we have participation in environmental law?’, ‘who should be able to participate?’, ‘what is the ‘environment’ and by which legal means can it be protected?’, ‘how can a legal order protect and enforce a right to participation (in environmental law)?’. Only when an international, a supra-national, and the national legal orders have found answers to these fundamental questions, they can find solutions for implementation, for establishing a legal regime on participation as well as for solving legal disputes before the courts. Looking at the bases of ‘participation’ one discovers delicate questions of legitimation, as participation is constructed to overcome ‘schemes of state-centred democracy’1, but is therefore also asking to replace models of direct legitimation of state action as found in the constitutions of the Convention States. There are different models of deliberative, associative or participatory democracy, which all have their limits and shortcomings especially when it comes to the question of who should be able to participate. It remains to be seen whether participative democracy works in larger communities (such as a whole state) with many diverse stakeholder interests and specific needs of information. Participatory democracy, no matter if it is used only to participate, to make the voice of the community heard, or if it is used to involve 1 Participatory Democracy and the Global Approach in Environmental Legislation (Cristina Fraenkel-Haeberle), in this volume, p. 31.

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those ‘with an interest’2 in the actual decision-making, can easily turn into the exercise of power of ‘few’: of those, who are better informed, who are especially interested in this matter, who are more knowledgeable in the specific topic, or who can be mobilised more easily. A sound model of participatory democracy needs to address these risks of involving parts of the public in decision-making beyond representative democracy. Even if participation can be applied on all levels of the state (which was doubted by some of the panellists), it will most probably remain a supplement to representative and liberal models of democracy. In order to solve frictions between models of participatory and of representative democracy, the idea of a deliberative or associative democracy, which can apply to all levels of decision-making, was introduced into the discussion alongside the idea of mitigating the deficiencies in democratic legitimation by fostering participation by NGOs. It was conceived quite differently whether participation enhances legitimation of a decision or only legitimacy in the sense of acceptance by the public. One has to respect that different constitutions approach these questions in quite different ways. For example, the exercise of state power or involvement in ‘real’ decision-making with influence on the outcome of the decision taken by parts of the demos – the ‘public concerned’ or some sorts of organised groups like environmental NGO’s – is not in conformity with constitutional principles of ‘democracy’ that require the whole demos to be able to influence the outcome like art. 20 (2) Grundgesetz (German Basic Law).3 One must keep in mind that models of ‘democracy’ do not need to be the same on the international, the supranational, the domestic constitutional, or the local level – therefore, a model of participation that works in one context may be inadmissible in another. As these are deeply enshrined constitutional values, a fast and smooth harmonisation – even via supranational law – does not seem very likely. As to the Aarhus Convention (AC), the panellists agreed that participation is closely connected to information and access to justice, whereas it remains to be seen whether the latter are part of participation or only prerequisites for successful participation. Looking at the rights to be protected by the AC, two categories can be distinguished: first, whether the AC guarantees substantive rights or rather aims at protecting the right to a healthy environment or the rights of the environment by procedural guarantees, and second, whether the rights guaranteed are rights of single individuals – claiming them out of a legally attributed environmental interest – or whether they are collective rights of mankind, of the environment, or of certain groups of people with the ‘public’ as a possible object of attribution. Whereas the domestic legal orders seem to differ in their use of rights or interests and their approaches in constitutional 2

The importance of this mean of attribution of participatory power is stressed by Participatory Rights and the Notion of Interest in Environmental Decision-making: a Theoretical Sketch and Some International Legal Considerations (Paolo Turrini), in this volume, p. 57. 3 See e. g. Böckenförde, in: Isensee/Kirchhof (Hg.), Handbuch des Staatsrechts, vol. II, 3rd ed. 2004, § 24, paras 27 and 31 – 34; Schmidt-Aßmann, in: Archiv des öffentlichen Rechts, vol. 116 (1991), 329, at 372.

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law, the AC might have led to a more harmonised perception. In the domestic legal orders the reasons for granting environmental rights are still divergent: they may be rather ‘individual’ rights like in German law – briefly: individuals are granted rights if they are touched in their individual sphere, the environment or nature does not have any direct rights, it may be protected under law indirectly via the protection of health, life, or property of the individuals. In Italian law the approach seems broader as there exists an interest-based approach for NGOs, whereas international and European law add a collective perspective: the environment must be protected as a common interest or common good.4 Most important is the connection between substance and procedure: while all panellists agreed that the AC solely grants procedural rights, it is difficult to determine whether these procedural rights presuppose a substantive right, maybe even a human right to protection of the environment. The contributors of these volume have shown that there exist various models in international, supranational, and domestic law for the attribution of this kind of rights: first, the right to protection can be seen as a human right, which seems to be recognised by the AC as a right of every person to a healthy environment. This individual approach – often followed by national constitutions by the means of safeguarding the right to health or to life of the individual as a fundamental right – is linked to environmental protection: either as an autonomous and substantive human right (of each person rather than a collective of persons), by recognising the environment as a prerequisite of a human right, or by using individual human rights in administrative or court proceedings in order to effectuate protection of the environment.5 Protection of the environment is to be effected by participation in the logic of the AC, thus participation is rather a procedural right of the members of the public concerned. It remains disputed, however, whether these procedural rights are human rights, a construction which is difficult to understand for a German lawyer, even though fundamental rights in the German Basic Law are said to have a procedural component. This reflects rather the idea that procedure is needed to guarantee substantive rights. The AC might help to induce a convergence of various human rights philosophies, even if one denies that it presupposes an underlying human right for its concept of participation (as did most of our panellists). Protection of the environment as a collective right is often linked to concepts of future generations or of indigenous peoples, in which case it is again close to a human right, or to subsidiarity, in which case it must be linked to concepts of an ecological duty or of a right of nature itself to be protected. As the decision in Trianel6 has emphasised the particular position of environmental NGOs under the AC, it is also said 4 See Public Interest to Environmental Protection and Indigenous Peoples’ Rights: Procedural Rights to Participation and Substantive Guarantees (Federica Cittadino), p. 73 and The Aarhus Convention between Protection of Human Rights and Protection of the Environment (Claudia Sartoretti), p. 43 in this volume. 5 These different concepts where highlighted by Claudia Sartoretti in her contribution in this volume. 6 CJEU, Case C-115/09.

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to have fostered the recognition of collective rights – however, rather a collective right to participation than to the protection of nature. This raises questions as to whether nature itself should and legally could be attributed autonomous substantive rights, which again depends on the constitutional orders of the convention states, which, within Europe, generally favour models of attribution of rights to legal and natural persons and of protecting nature indirectly or via objective legal duties of the State (like the construction of Staatszielbestimmungen under art. 20a Grundgesetz). Neither the AC nor EU law have the power to change this setting.

II. Implementation of Ecological Duties: the Legal Recognition of an ‘Ecological Interest’ The concept of a responsible environmental citizenship7 was mostly favoured by Italian colleagues, stressing that protection of the environment is not only a legal duty of the states, their subdivisions, and international organisations according to various constitutions (amongst them the Italian, the German and the French) and international treaties, but also of each individual. Whereas the duties of the states are clearly defined in legal instruments, it becomes more difficult to argue in favour of a legal and not only moral duty of the individual. Even the AC primarily sees participation as a right and a means of the citizens to claim the enjoyment of a sound nature. Whether care for the planet, for future generations or sustainability results in a legal duty of each citizen to protect the environment seems to depend on the respective legal order, but might be promoted by art. 1 and 2 AC. Most importantly, the right (and maybe duty) to participate is centred on the notion of ‘interest’. In order to be able to participate – be it in administrative or in court proceedings – most legal orders demand at least a particular interest of the party, meaning that those without an interest should be excluded. Again, this idea of granting standing or decision-making powers on the basis of ‘interest’ rather than more narrowly on ‘rights’ came more natural to the Italian than the German lawyers (see also IV.), even though they agreed that the AC encourages (and maybe even demands) an interest-based approach, whereas other international treaties and European law build on a connection between human rights and the attribution of participatory powers.8 It also became clear from the discussion that the understanding of the AC both of the required level and content of ‘protection of the environment’ and the limits of ‘environment’ itself are blurry and there is no settled case-law so far, leaving the inter7 The Aarhus Convention between Protection of Human Rights and Protection of the Environment (Claudia Sartoretti); p. 43 and Ecological Interest as a Leading Rationale for Participation: Ecological Duties of the Citizens and of the Authorities (Giulia Parola), p. 13 in this volume. 8 See inter alia Public Interest to Environmental Protection and Indigenous Peoples’ Rights: Procedural Rights to Participation and Substantive Guarantees (Federica Cittadino), p. 73 in this volume.

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pretation of the notions to the various legal orders of the Parties to the Convention. They might for example include historical buildings or archaeological sites in the meaning of ‘environment’ or stress a difference between ‘nature’ and ‘environment’. It is also still debated whether such an interest is rather a public interest or an individual interest and if it is an individual interest, whether this interest is in a way collective or ‘multi-individual’, meaning that it is not an interest of a single person but of a group of persons, i. e. the public concerned, who is entitled (and maybe obliged) to act. As long as this is perceived differently in the legal orders (as it emerged from the German-Italian-English-French-Austrian debates), it will be hard to find a common understanding of access to information, decision-making, and most importantly access to justice in environmental matters, as the persons being enabled to claim participatory rights will differ between the Convention States. Likewise, as long as both the Italian and the German legal order will only grant participatory rights, standing or information in environmental matters (see the Umweltrechtsbehelfsgesetz – Environmental Appeals Act (EAA) in Germany, the broader legal doctrine and judicial practice in Italy in relation to provisions serving the environment9, and ‘attorney for the environment (Ombudsmann)’ in Austria10), it is crucial how the laws, legal doctrine and judicial practise perceive the notion of ‘environment’, thereby restricting or expanding participatory rights. The same can be said about the term ‘public’ or ‘public concerned’, which – especially now that it has emerged from the case law of the Court of Justice of the European Union (CJEU) and the Aarhus Convention Compliance Committee (ACCC) that standing in environmental matters is to be granted on a broad basis – is used by German (and probably other domestic courts) as an interpretative means to dismiss claims.

III. Changes in Public Participation in Administrative Proceedings Changes in public participation in administrative proceedings were mostly reported from Italy, as the transposing EAA in Germany concerns court proceedings. In Italy, both access to information as a prerequisite to participation and participation in administrative proceedings need to be adapted to the requirements of the AC. Yet, there existed a previous ‘tradition’ of granting access to information in environmental matters, which might have made it easier than in Germany with its tradition of nondisclosure in administrative matters, even though with the Informationsfreiheitsgesetz there now exists a quite broad basis for information not only in environmental matters. 9 See The German Criteria for Access to Justice under the Scrutiny of the Aarhus Convention Compliance Committee and of the Court of Justice of the European Union: is there Room for Similar Proceedings against Italy? (Elena Fasoli), p. 185, Participation of Environmental Associations in the Context of Nature Conservation Law in Germany (Julian Zwicker/Franziska Sperfeld), p. 117 in this volume. 10 See Attorneys for the Environment – an Effective Implementation of Art. 9 (3) Aarhus Convention? (Ulrike Giera), p. 215 in this volume.

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Nonetheless, the Italian commentators have asserted participatory gaps, stemming from a mere top-down approach, i. e. the possibility to partake in administrative proceedings only in those situations envisaged by the laws, and a still interest-based granting of rights in art. 22 Law 241/1990, which seems to contradict art. 4 AC. It is also criticised that administrative bodies do not have to completely and precisely motivate their considerations on the submissions of the public concerned in an administrative proceeding.11 Likewise, in Germany, submissions need to be considered, but the participants are not necessarily informed about the process of consideration and submissions do not necessarily influence the outcome of the decision,12 leaving many participants with the feeling that their voice did not matter in the end. This is in accordance with art. 6 – 8 AC, demanding that submissions by the public are taken into due account, and mitigates problems of democratic legitimation, which arise when parts of the public can influence the outcome of a decision taken by public representatives of the people. Still, doubts as to an effective participation have been raised by the panellists, as the power of control remains with the state alone. Rather empirical studies show that NGOs are content with their possibilities of participation under EU law instruments, such as REACH,13 whereas even NGOs – which are privileged participants both under the AC and the domestic laws – still suffer legal and practical difficulties with participation and access to information within the Member States’ administrative proceedings. It is hard to guarantee – as stipulated by the AC – participation at a stage where ‘all options are still open’, as this means involvement at a stage where the opinion of public bodies has not formed yet. However, Germany has introduced a general provision on ‘early participation by the public’ (frühe Öffentlichkeitsbeteiligung) in sec. 25 (3) Federal Administrative Procedural Act (Bundesverwaltungsverfahrensgesetz), which is being used quite frequently for planning decision in infra-structural projects and land development.14 Early participation can mostly be effectuated on a local level by informal panels, but once public administration has taken the decision to enter into planning activities it is hard to imagine that all options as to the outcome are still open and can therefore be effectively influenced by participation. Panel 2 rightly concluded that hardly anyone questions the idea of the AC, but its implementation is still problematic as many single administrative procedures have to be regarded.

11

See The Implementation of the Aarhus Convention in Italy: a Strong ‘Vision’ and a Weak ‘Voice’ (Viviana Molaschi), p. 103 in this volume. 12 See Participation of Environmental Associations in the Context of Nature Conservation Law in Germany (Julian Zwicker/Franziska Sperfeld), p. 117 as regards nature conservation law. There is not a big difference to other planning decisions or legislative actions like land development plans. 13 See Participation under REACH – Stakeholder Interests and Implementation of EU Secondary Law (Nicola Below), p. 131 in this volume. 14 See Bundestagsdrucksache 18/4159 of 2 March 2015.

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IV. Changes in Public Participation in Court Proceedings Many aspects of public participation in court proceedings have already been compared in § 10 as regards the modifications for access to justice brought about by the AC. Whereas art. 9 (1) AC has not posed problems within Germany, it is mostly art. 9 (2) AC and recently art. 9 (3) AC which challenge the established system of access to justice based on individual rights (Schutznormtheorie). This does not only concern the question of standing – which in the opinion of German judicial practice has been resolved by the modifications of the EAA and the particular involvement of NGOs, but does not need to go further even after the decision in Altrip15 – but also the question of which mistakes in the administrative decision-making process can be tried before a court by an individual claimant. Sec. 46 Administrative Procedural Code perceives this quite narrowly, as only mistakes with an impact on the result cause the decision to be voidable. A correct implementation of the AC is inconsistent with the German legal tradition that formal and procedural mistakes in general do not influence the validity on an administrative decision. Yet, the EAA still followed very strongly the ideas of traditional administrative law in 2006.16 Italian law, on the other hand, has a longer tradition of an interest-based approach, which renders it easier to grant standing in environmental matters, where often there is no right of an individual impaired unless all rights to protection of the environment are constructed as substantial human rights. Yet, NGOs in Italy can only challenge administrative decisions – although beyond the scope of public participation – when they can show that they involve an environmental interest. In judicial practice ‘environmental interest’ is interpreted narrowly and brings back the question of how ‘environment’ is defined in delimitation from ‘nature’. As to standing, the limits of discretion for the Member States where widely discussed, as this concerns all Member States. It remains doubtful whether art. 9 (3) AC goes further than art. 9 (2) AC, rendering it literally impossible for Member States to uphold a system based purely on the attribution of individual rights, as has been indicated by the CJEU in its Slovak Brown Bear17 decision whilst contradicting the intention of the contracting parties. The possibilities for the Member States are said to include the following: (1) creation of subjective/individual rights to the protection of the environment while keeping a rights-based system of standing, (2) granting standing without substantive rights to all parties concerned (with the difficulty of deter15

CJEU, Case C-72/12. Lately, on 9 April 2014, the Verwaltungsgerichtshof BadenWürttenberg has again ruled that individual claimants need to prove a violation in subjective and substantive rights for standing. Mere mistakes in procedure, even in an environmental impact assessment, do not provide for such a subjective right, even when the requirements of the AC and EU law are taken into account; ESVGH 64, 238 (242). 16 See The Effect of the Aarhus Convention’s Right to Access to the Courts in Germany (Bilun Müller), p. 199 and The German Criteria for Access to Justice under the Scrutiny of the Aarhus Convention Compliance Committee and of the Court of Justice of the European Union: is there Room for Similar Proceedings against Italy? (Elena Fasoli), p. 185 in this volume. 17 Case C-240/09.

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mining who is concerned), (3) keeping a rights-based system but include NGOs in conformity with art. 9 (3) AC, (4) a broader interpretation of subjective rights by the judiciary, which raises the problem of whether the judiciary is competent to determine who should have standing in which cases – both under the perspective of an effective implementation of the AC and of requirements of domestic constitutional law, or (5) the creation of a specific ‘attorney for the environment’, who would have to have standing out of his/her own right in environmental cases18.

V. The Role of Individuals and NGOs in the Implementation of the AC Not only art. 9 (3) AC treats NGOs as ‘special’ in the sense that legally they are understood to play a particular and important role in the protection of the environment by participation. They are deemed to be better equipped, more interested, better organised, knowledgeable and willing to stand up for the rights or interests of nature. Whereas it is difficult for legal orders to define ‘public’ or ‘public concerned’ as required by the AC in order to grant standing and decision-making powers, nongovernmental organisations offer a clearly defined group under law. From the discussion between economists and lawyers emerged that participation involves interaction of various stakeholders on different levels. These stakeholders represent a diversity of interests and knowledge, and are subject to various laws, including soft law, and therefore sometimes conflicting obligations. In order to reach both efficient and just participation of those concerned, it can be valuable to concentrate these factors. This is, where the environmental NGOs come into play. At least in theory, they have the capacity to join the interests of different stakeholders from various backgrounds, similar to political parties in models of representative democracy. It was also discussed whether the involvement of NGOs is a way to mitigate problems of democratic legitimacy in participatory models, as NGOs can concentrate interests and represent them in decision-making. Yet, in practice, there exist difficulties in implementing these models in all legal orders considered: first of all, NGOs themselves also represent various stakeholders. They face organisational and mostly financial problems, which lead to deficiencies as regards the preparation of legal claims or of actions under instruments such as REACH19 and to an elevated need to rely in voluntary work.20 In order to make 18 For the questions raised by this construction see Attorneys for the Environment – an Effective Implementation of Art. 9 (3) Aarhus Convention? (Ulrike Giera), p. 215 in this volume. 19 See mostly Participation under REACH – Stakeholder Interests and Implementation of EU Secondary Law (Nicola Below), p. 131 in this volume. 20 Cf. Participation of Environmental Associations in the Context of Nature Conservation Law in Germany (Julian Zwicker/Franziska Sperfeld), p. 117 in this volume.

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their voice heard they will need to network and to join forces in future as well as to find modern ways of communication with the public authorities taking the decision. Legally, in Germany as well as in Italy, NGOs still face restrictions when it comes to standing, access to information, or involvement in decision-making. Despite modifications of the EAA in Germany following the decisions of the CJEU in Trianel and Slovak Brown Bear, and a rather lenient practice of recognising ‘environmental NGOs’ under sec. 3 EAA, the implementation falls short of the clearly wider requirements of the AC as it requires a certain type of legal organisation (a German registered non-profit union), which is mostly not met by organisations acting on the international or transnational level,21 and restricts their claims to certain environmental-related issues (sec. 1 EAA). It remains to be seen whether the CJEU will find this to be in contradiction with the requirements of free movement of persons and of establishment under the Treaty on the Functioning of the European Union (TFEU). In Italy, the doctrine and practise is wider – NGOs pursuing an environmental objective are granted standing even against those administrative decisions that do not fall into their scope of environmental activity. Italy has already run a system of acknowledging environmental associations since 1986.22

VI. The Effects of Three Legal Regimes Finally, the dialogue has shown that the special setting of the AC, being a mixed agreement with the EU and the Member States of the EU being separate parties to the Convention, has provided the provisions of the AC with a higher implementatory force within Italy, Germany, and Austria (and probably also other Member States of the EU). This is due to EU secondary law having binding effect within the national legal orders and requiring to be implemented effectively according to art. 4 (3) Treaty establishing the European Union (TEU). Most changes in the German legal system have been brought about by decisions by the CJEU, even when ACCC has also rendered a decision.23 Also, in Italy – although it has not been subject to CJEU or ACCC proceedings so far – it seems that it is easier to accept the necessary modifications in EU-related cases, changes are also expected to materialise due to Directive 2014/52/ EU on information.24

21

See ibid., p. 117. See The German Criteria for Access to Justice under the Scrutiny of the Aarhus Convention Compliance Committee and of the Court of Justice of the European Union: is there Room for Similar Proceedings against Italy? (Elena Fasoli), p. 185 in this volume. 23 For a profound analysis of the relationship between the courts, which has been shared by the panellists in panel 3, see ibid., p. 185 and Access to Justice the Main Challenge for Implementing the Aarhus Convention (Eva Julia Lohse), p. 155. 24 See The Implementation of the Aarhus Convention in Italy: a Strong ‘Vision’ and a Weak ‘Voice’ (Viviana Molaschi), p. 103. 22

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As to contradicting decisions from different enforcing institutions (ACCC, CJEU, maybe also the European Court of Human Rights and to a lesser degree other regional courts on human rights) it remains to be seen in the future, how this problem of ‘too many cooks spoil the soup’ will be solved. It seems to be a step in the right direction that the ACCC had adjourned its decision in Trianel until the decision of the CJEU had been published and that the CJEU will take decisions of the ACCC into account when determining the correct interpretation and implementation of a directive. Thus, a certain cross-fertilisation and harmonised interpretation at least within the EU and in-between its Member States seems palpable. Yet, one must not forget that there are more parties to the Convention than just EU Member States and a too close interrelationship between the ACCC and the CJEU may lead to a ‘two-speed’ implementation of the AC inside and outside the EU.

VII. To Conclude The comparison shows that many difficulties are the same even if the starting point within the legal orders had been different. Yet, public participation – even outside the scope of the AC, as the recent German law on the improvement of public participation in infrastructure projects25 shows – is a legal fact and need of our times which needs to be accommodated by the various legal orders. We would like to conclude with the words of Lord Hoffman in a case concerning the implementation of EU-Directive 85/337/EEC on environmental impact assessment: implementation ”requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues.”26 This holds true beyond the scope of environmental impact assessment and describes the very core of public participation in administrative decision-making.

25

Gesetz zur Verbesserung der Öffentlichkeitsbeteiligung und Vereinheitlichung von Planfeststellungsverfahren (PlVereinhG), 31 Mai 2013 (Bundesgesetzblatt I-2013, 1388). 26 House of Lords, Berkeley v. Secretary of State for the Environment and others, UKHL [2000] 36, para. 8.

List of Authors Nicola Below, Diplom-Informationsjurist (FH), Sonderforschungsgruppe Institutionenanalyse – sofia, Hochschule Darmstadt Prof. Riccardo Beltramo, Full Professor of Industrial Ecology, Commodity science area, Department of Management, Università degli studi di Torino Federica Cittadino, PhD candidate at the School of International Studies, Università degli studi di Trento Prof. Stefano Duglio, Assistant professor, Commodity science area, Department of Management, Università degli studi di Torino Dr. Elena Fasoli, Research Fellow, Queen Mary University of London PD Dr. Cristina Fraenkel-Haeberle, Forschungsreferentin und Projektkoordinatorin, Deutsches Forschungsinstitut für öffentliche Verwaltung Speyer Dr. Ulrike Giera, Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (zuvor: wissenschaftliche Mitarbeiterin, Universität für Bodenkultur Wien) Dr. Eva Julia Lohse, LLM (Kent), wissenschaftliche Mitarbeiterin, Hans-Liermann-Institut, Lehrstuhl für Kirchenrecht, Staats- und Verwaltungsrecht (Prof. Dr. Heinrich de Wall), Friedrich-Alexander-Universität Erlangen-Nürnberg Prof. Dr. Viviana Molaschi, Tenured Researcher and Assistant Professor of Administrative Law, Department of Law, Università degli studi di Bergamo Dr. Bilun Müller, LLM (Brügge), Senatsverwaltung für Wirtschaft, Technologie und Forschung, Berlin Dr. Maria Beatrice Pairotti, PhD in Commodity Science, Commodity science area, Department of Management, Università degli studi di Torino Dr. Giulia Parola, LLM (Reykjavik), Postdoctoral Researcher in Constitutional Environmental Law, Universidade Federal Fluminense, Rio de Janeiro, Brasil Prof. Dr. Margherita Poto, Tenured Researcher and Assistant Professor in Administrative Law, Department of Management, Università degli studi di Torino Prof. Claudia Sartoretti, Tenured Researcher and Assistant Professor of Public Law, Department of Management, Università degli studi di Torino Dr. Angela Schwerdtfeger, Akademische Rätin a. Z., Lehrstuhl für Öffentliches Recht, Europarecht und Völkerrecht (Prof. Dr. Matthias Ruffert), Friedrich-Schiller-Universität Jena Franziska Sperfeld, Dipl.-Umweltwissenschaftlerin, Projektleiterin, Fachgebiet Umweltrecht & Partizipation, Unabhängiges Institut für Umweltfragen – UfU – e.V., Berlin Dr. Paolo Turrini, Post-Doc Research Scholar, School of International Studies, Università degli Studi di Trento Julian Zwicker, Bachelor of Laws (Umweltrecht), Fachgebiet Umweltrecht & Partizipation, Unabhängiges Institut für Umweltfragen – UfU – e.V., Berlin