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 in environmental law and the Aarhus Convention (Case C-115/09)

elni Review ◽  
2011 ◽  
pp. 96-103
Author(s):  
Eva Julia Lohse
Keyword(s):  
Environmental Impact ◽  
Judicial Review ◽  
Environmental Law ◽  
Access To Justice ◽  
Effective Implementation ◽  
Environmental Ngos ◽  
Procedural Law ◽  
Aarhus Convention ◽  
Unrestricted Access ◽  
Wide Access

In Case C-115/09, the ECJ has decided that – despite their wording – Art. 10a of the Directive on Environmental Impact Assessment (henceforth: Directive), which implements Art. 9(2) of the Aarhus Convention (henceforth: Convention), requires the Member States to provide unrestricted access to justice for environmental NGOs. This looks like a victory for environmental lawyers who have long advocated the introduction of an ‘altruistic group action’ (‘altruistische Verbandsklage’) in environmental matters, as Germany will have to modify its current transposition of the Directive in some way. Considering the tension between desirable effective implementation of environmental law through judicial review and an – unrequested – overly restrictive interpretation of the margin of implementation, the decision demands the authors of this article to analyse closely why “wide access of justice” (Art. 10a (3) of the Directive) could mean ‘unrestricted access’ for NGOs and why it does and should not. The authors also take a closer look at the consequences for (German) procedural law.

Locus standi for environmental NGOs in Germany: The (non)implementation of the Aarhus Convention by the ‘Umweltrechtsbehelfsgesetz’ - Some critical remarks

elni Review ◽  
2010 ◽  
pp. 30-35
Author(s):  
Gerhard Roller
Keyword(s):  
Environmental Law ◽  
Access To Justice ◽  
German Government ◽  
Member States ◽  
Community Law ◽  
Limited Access ◽  
Environmental Ngos ◽  
Locus Standi ◽  
Aarhus Convention

Access to justice for environmental NGOs in Germany is a long and troublesome story. Since the appearance of a widespread movement of environmental associations in the 1970s, there has been a struggle for the introduction of an association lawsuit in German environmental law. The campaign to open the courtrooms’ doors had been observed with scepticism by politicians and traditional lawyers, sometimes accompanied by hostility. There was deep concern that fanatic members of NGOs would bring ‘a spate of querulous actions, and the courts would be inundated by environmental litigation.’ It is therefore not surprising that the German government was not too enthusiastic about the Aarhus Convention. This of course did not hinder German representatives actively influencing the wording of the Convention in a restrictive sense during the negotiations. But even then we had to wait until a Red-Green coalition came into effect in 1998 before the Convention was signed. With the coming into force of the Aarhus Convention and the related EC directives transposing this Convention into community law, the Member States are obliged to transpose the Convention into national law. As a consequence, the traditional German concepts which confer only very limited access to the courts on NGOs have to undergo fundamental revision. However, it seems that the German legislator is not yet ready for this change. For the present, the Environmental Appeal Act that entered into force on 15 December 2006 is the latest chapter in this story – but certainly not the last.

The Aarhus Convention and Polish Regulations Concerning Parties to Proceedings for Issuing the eia Decisions

2021 ◽  
Vol 18 (1-2) ◽  
pp. 56-76
Author(s):  
Magdalena Michalak ◽  
Przemysław Kledzik
Keyword(s):  
Environmental Law ◽  
Legal Order ◽  
Access To Justice ◽  
United Nations Economic Commission ◽  
The Public ◽  
Law And Policy ◽  
Economic Commission ◽  
Aarhus Convention ◽  
Key Issues ◽  
Environmental Law And Policy

Abstract The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted on 25 June 1998 in the Danish city of Aarhus. According to its provisions each state Part shall, within the framework of the national legal order, ensure that members of the public concerned have access to a review procedure before a court of law or another independent and impartial body established by law. At the same time, it contains regulations specifying the criteria that constitute the basis for determining persons enjoying rights to access justice with respect to national legal orders. Poland, being one of the state Parties, introduced into national legal order special provisions enabling implementation of the Aarhus Convention, including regulations concerning parties to proceedings in environmental matters. The aim of the study is to analyse and assess these regulations in the light of the requirements adopted in the Aarhus Convention and to formulate general conclusions in the field of key issues of the international and European environmental law and policy.

Citizen’s Rights in European Environmental Law: Stock-Taking of Key Challenges and Current Developments in Relation to Public Access to Information, Participation and Access to Justice

2012 ◽  
Vol 9 (1) ◽  
pp. 71-90
Author(s):  
J. Jendrośka
Keyword(s):  
Environmental Law ◽  
National Level ◽  
Legal Framework ◽  
Public Access ◽  
Access To Justice ◽  
Access To Information ◽  
Aarhus Convention ◽  
Compliance Mechanism ◽  
Implementation Problems

The article aims to provide a short overview of the current situation regarding public access to information, participation and access to justice in Europe. The article briefly presents the role of the Aarhus Convention and its compliance mechanism in shaping the respective legal framework at both national level and EU level. On that basis it summarises some key challenges and implementation problems respectively in relation to public access to information, participation and access to justice.

Lisbon and Access to Justice for Environmental NGOs: A Watershed? A Case Study Using the Setting of the Total Allowable Catches under the Common Fisheries Policy

2010 ◽  
Vol 7 (4) ◽  
pp. 391-410
Author(s):  
Charlotte Herman
Keyword(s):  
Lisbon Treaty ◽  
Access To Justice ◽  
Environmental Ngos ◽  
Locus Standi ◽  
Aarhus Convention ◽  
Fisheries Policy ◽  
The Common ◽  
Gain Access ◽  
The Eu

AbstractBefore the Lisbon Treaty, environmental non - governmental organisations could rarely or not satisfy the admissibility test to gain access to the European courts. This contribution examines whether the rules on locus standi under the Lisbon Treaty will facilitate their access to justice. Attention will be given to what is understood by a 'regulatory act', the EU obligations under the Aarhus Convention and whether the new perspectives within the Lisbon Treaty will allow environmental non - governmental organisations to challenge TAC Regulations.

Access to Justice: Environmental Non-Governmental Organisations According to the Aarhus Regulation

elni Review ◽  
2016 ◽  
pp. 76-84
Author(s):  
Thirza Moolenaar ◽  
Sandra Nóbrega
Keyword(s):  
European Union ◽  
European Commission ◽  
Environmental Law ◽  
Access To Justice ◽  
The European Union ◽  
Internal Review ◽  
Review Procedure ◽  
Administrative Omission ◽  
Wide Access ◽  
The Eu

Article 10 of the Aarhus Regulation provides an opportunity for environmental non-governmental organisations (hereafter ENGOs) to request an internal review to an EU institution or body that has adopted an administrative act under environmental law, or should have done so in the case of an alleged administrative omission. The criteria that have to be met for an ENGO to be entitled to make this request are defined in Article 11 of the Regulation. Together, these criteria can be regarded as the criteria which define an ENGO at the European Union level. The aim of this article is to investigate whether these criteria are sufficiently clear and whether they contribute to the objective of providing wide access for ENGOs to the internal review procedure. In order to understand the aim the EU institutions had in mind when they decided on the standing criteria, this article examines how these criteria were selected by analysing the legislative documents that resulted in the adoption of the Aarhus Regulation. It helps to identify whether the Commission is currently interpreting these criteria in line with the spirit with which they have been defined. Furthermore, internal review requests which provide insights into the scope of the Article 11 criteria have been selected in order to understand how the European Commission currently interprets the standing criteria. Finally, a conclusion is provided on the questions raised, together with recommendations for improvement and further research.

scholarly journals Access to justice in State aid: how recent legal developments are opening ways to challenge Commission State aid decisions that may breach EU environmental law

ERA Forum ◽  
2021 ◽  
Author(s):  
Juliette Delarue ◽  
Sebastian D. Bechtel
Keyword(s):  
Environmental Law ◽  
Current System ◽  
Internal Market ◽  
State Aid ◽  
Access To Justice ◽  
Court Of Justice ◽  
Aarhus Convention ◽  
The Eu

AbstractAccess to justice in State aid matters is very limited. In particular, the admissibility test before the Court of Justice of the EU excludes private parties who are not market operators. The recent CJEU ruling in the Hinkley Point C case and the findings of the Aarhus Convention Compliance Committee call into question the adequacy of the current system. The findings demand an opening for non-market actors, including non-governmental organisations, to allege breaches of EU environmental law by the beneficiary of a State aid measure and consequently, the incompatibility of the aid measure with the internal market.

Garantias constitucionais do processo e instrumentalidade processual

2020 ◽  
Author(s):  
Sergio Torres Teixeira ◽  
Julienne Diniz Antão
Keyword(s):  
International Law ◽  
Social Participation ◽  
Judicial Review ◽  
Graduate Program ◽  
Preventive Measures ◽  
Access To Justice ◽  
Safety Measures ◽  
Procedural Law ◽  
Administrative Procedures ◽  
The Right

During the months of May to September, Prof. Dr. Sérgio Torres Teixeira taught a discipline called “Constitutional Guaranties of the Process and Procedural Instrumentality” (which is also the name of this book) in the Post-Graduate Program of the Federal University of Pernambuco; one of the first classes entirely online in regard to COVID-19 safety measures. Despite the distance, all classmates were remarkably close in the intellectual purpose of learning and develop the law. Their researches, discussions and enthusiasm gave birth to this book, which delves deeply in important matters regarding constitutional and procedural law. It is constituted of 12 carefully written articles concerning such matters as the non-avoidance of judicial review, procedural equality in national and international law, international juridical cooperation and the effectiveness of transnational adjudication, the right to a natural judge in arbitration, social participation in administrative procedures, preventive measures in administrative procedures, among other themes that can be seen in the summary. It is a book that encapsulate different views and perspectives about such fundamental matters, intertwining different areas of law, abundantly revealing the plurality of though that sets the tone to this valuable initiative. It is by definition the work of a collectivity, that by mutual criticism made possible this academic landmark to all participants, showing the active and curious spirit of the minds cultivated in the Federal University of Pernambuco, specially concerning the researches related to procedural justice, access to justice and instrumentality. In this sense, is a work that reflects the prominent procedural issues of its time.

“Unlocking Legal Gridlock in High-Income Countries: How Excessive Litigation Hampers Growth and Harms Democracy”

2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Christian Rasquin
Keyword(s):  
Decision Making ◽  
Interest Groups ◽  
Environmental Law ◽  
High Standard ◽  
Standard Of Living ◽  
Access To Justice ◽  
Access To Information ◽  
European Law ◽  
Public And Private ◽  
Aarhus Convention

Abstract The paper focuses on rules of standing in the context of environmental law. With the implementation of the Convention on Access to Information, Public Participation in Decision-making, and Access to Justice in Environmental Matters (Aarhus Convention) in European law, interest groups have become major players in the enforcement of environmental regulations. Although such interest groups can help to reduce enforcement deficits, their involvements create the risk of regulatory gridlock, with excessive litigation lengthening approval processes which can discourage investment in public and private infrastructure. The paper discusses the implementation of the Aarhus Convention in Germany, highlights ways to overcome administrative gridlock and facilitate effective approval procedures. If implemented, these strategies will enable Germany’s economy to remain competitive, supporting the maintenance of the country’s high standard of living and strong welfare state.

Private Enforcement of the Public Interest and the Europeanisation of Administrative Law – The Trianel Judgment of the ECJ

2011 ◽  
Vol 2 (4) ◽  
pp. 607-615
Author(s):  
Carola Glinski ◽  
Peter Rott
Keyword(s):  
Public Interest ◽  
Environmental Law ◽  
Public Information ◽  
Administrative Law ◽  
Private Enforcement ◽  
Access To Justice ◽  
Public Authorities ◽  
The Public ◽  
Procedural Law ◽  
Private Participation

The EU has taken influence on the administrative laws of the Member States by introducing elements of public information, participation of stakeholders and private enforcement, and environmental law was the frontrunner of this development. The same tendency can be observed at the international level, culminating in the adoption of the Århus Convention in 1998. This has created tensions with traditional administrative law systems that have strongly relied on public authorities to produce the correct outcome whilst severely restricting private participation and private access to justice. The Trianel case, dealing with the protection of habitats against a coal power plant, demonstrates the need for fundamental adjustment of German administrative law, and it may lead to subsequent changes of the modalities of administrative procedural law in order to really allow the private enforcement of the public interest (authors’ headnote).

Article 9.2 of the Aarhus Convention and eu Law

2014 ◽  
Vol 11 (4) ◽  
pp. 367-391 ◽  
Author(s):  
Jan Darpö
Keyword(s):  
Decision Making ◽  
Environmental Law ◽  
Access To Justice ◽  
Environmental Decision Making ◽  
Aarhus Convention ◽  
Key Issues ◽  
Important Means ◽  
Judicial Protection ◽  
Environmental Decision

One important means for the implementation of the third pillar of the Aarhus Convention into eu law is the provisions on access to justice in the eia Directive (2011/92). The case-law of the cjeu on those provisions has developed rapidly in the last couple of years. This body of cases has given the concept “access to justice in environmental decision-making” a new meaning and improved the understanding of the requirement for judicial protection under eu environmental law. The aim of this article is to highlight this development and discuss a couple of key issues on access to justice. First, the relationship between “direct effect” and the individuals “rights” and the principles of effectiveness and judicial protection according to eu law is analysed. Thereafter, the meaning of “substantive and procedural legality” and the distinction between general and personal interests in relation to individual’s standing are discussed. The next issue concerns the role of environmental non-governmental organisations. Finally, the concept “courts or tribunals” in environmental decision-making procedures is considered.

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