Aarhus for real beginners

12 October 2013 by David Hart KC

Aarhus seems to seep into cases everywhere, so I thought it was about time to start from scratch. 

1. What is Aarhus? Denmark’s second city. You can write it like Århus, if you want a bit more Jutland cred. Ryanair fly there-ish (45km away).

2. How do you say it? Something like Orr-hoose: Danes, any better transliteration?

3. Why do lawyers go on about it? Because the UN-ECE Aarhus Convention was signed there in 1998. It came into force on 30 October 2001.

4. UN-ECE? United Nations Economic Commission for Europe, a regional organisation made under Article 68 of the UN Charter

5. What is the Convention about? 3 things (or pillars, in treaty-argot).

• Access to environmental information
• public participation in environmental decision-making, and
• access to justice in environmental matters.

6. Is the UK signed up? Yes, founder member. It ratified it in 2005, when the EU did.

7. I take it the UK always complies with its terms? Um, no: see the list of related cases at the bottom of this post.

8. Who else is a member of the club? 44 other countries plus the EU, covering almost all of Europe and some of Central Asia.

9. Has everyone who signed it ratified it? No, Liechtenstein, Monaco and Switzerland haven’t. Each too poor, I suppose.

10. Does it have its own enforcement procedures? Yes, the Aarhus Convention Compliance Committee (ACCC), which gets “communications” from individuals from its signatory states, and determines disputes between private parties and signatory states at hearings in Geneva (a non-ratifier). Great website if you know what you are looking for – every piece of paper in every single case, so true transparency.

11. If the EU is a member, the Convention is part of EU law? Not quite so fast:

• The EU has fully implemented the bit about Environmental Information – see the Directive governing access to environmental information (Directive 2003/4) – with its domestic equivalent the Environmental Regulations 2004.
• It did the public participation bit via Directive 2003/35 – inserting new public participation obligations into Directives about Environmental Impact Assessment (85/337 as amended, so think planning) and Pollution Control (96/61) and tying this into provisions about access to justice (i.e access to courts). These have all been duly transposed into their domestic equivalents. But there is no general implementation of this pillar, though new EU Directives get Aarhus-style provisions in them.
• there is no general implementation of the access to justice bit – again it is sectoral, and it does not apply to challenges to acts or omissions by private parties (as Article 9(3) & 9(4) of the Convention does)
• The EU came up with Aarhus for its own institutions, rather later, in the form of Regulation 1367/2006 – much criticised for not doing a proper job, even by the EU’s own General Court: see my post here; as have the EU’s restrictive rules about standing in its own courts: the ACCC said the latter were in breach of Aarhus in 2011 (see here) – and see my post on the recent Inuit case in which the CJEU stuck to its guns on standing.
•  A move to implement the whole of the Aarhus pillar on access to justice stalled: see the Commission proposal at  COM/2003/0624
•  But Aarhus rules (and hence those about access to justice) may apply whenever there is an EU obligation in play – see Lesoochranárske zoskupenie VLK – the Slovakian Bear case.
• Ratification by the EU gives the European Commission the right to ensure that Member States comply with the Aarhus obligations in areas within EU competence (see Commission v France Case C-239/03 (2004) ECR I-09325 paras 25-31).

12. Is it part of UK law? See above for when it is brought in via EU law, which we all know to be king of the jungle. The current infringement case before the CJEU is a good example, both on costs and on interim remedies. But in a case without EU elements, it is only something to be taken account of. As the Court of Appeal put it in my case of Morgan v. Hinton put it

For the purposes of domestic law, the Convention has the status of an international treaty, not directly incorporated…. Thus its provisions cannot be directly applied by domestic courts, but may be taken into account in resolving ambiguities in legislation intended to give it effect.

So the fact that the UK is or may be in trouble with the ACCC is by no means definitive with the domestic courts.

13. Aarhus action to come shortly?

• The CJEU to say whether it agrees with the A-G on the infringement proceeding about prohibitive expense and interim remedies.
• The Supreme Court to apply the existing CJEU guidance in Edwards on prohibitive expense.

All pretty easy, really.

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Related posts:

• Aarhus: UK seems to be in trouble again, this time with the EU
• Aarhus: the A-G, and why the rules on interim remedies need to change
• The CJEU on “prohibitively expensive” and the new protective costs order regime.
• Aarhus watch: a UK breach and a fudge
• Court of Appeal downplays Aarhus
• Environmental judicial review is “prohibitively expensive”, uncertain and insufficient 
• Environmental compliance body urges major changes to the law
• Pressure grows for reform of access to environmental justice
• Aarhus breaches all round?