E.U. -- Working Document: Access to Justice in Environmental Matters(2002.11.04.)

Working Document

(11-04 -2002)

Access to justice in environmental matters

TABLE OF CONTENTS
1. Part I: Introduction
2. The Aarhus Convention
3. Enforcement of environmental law and The benefits of public participation in administrative or judicial proceedings 5
4. Competence of the European Community and the principle of subsidiarity6
5. The Situation in the Member States
Part II: Content of the future proposal
1. General approach
2. objective of the future proposal
3. Definitions
3.1. Environmental proceedings
3.2. Administrative acts and omissions
3.3. Public authority
3.4. The public
3.5. The public concerned
3.6. Recognised non-governmental organisation
3.7. Citizens` grouping
3.8. Non-profit basis
3.9. Statute
4. Scope of the Future Proposal
4.1. Law relating to the environment
4.2. Community and national environmental law
5. Review of acts or omissions by public authorities by or other legal and natural persons
5.1. Environmental proceedings
5.2. Administrative acts and omissions
5.3. Request for action
6. Legal standing
6.1. The public concerned
6.2. Citizens` groupings
6.3. Environmental non-governmental organisations
6.4. Legal standing for municipal or regional administrative bodies 16
6.5. Criteria for recognising environmental non-governmental organisations
6.6. Procedural aspects with respect to the recognition of non-governmental organisations
7. Interim Relief
8. effectiveness and costs

1. Part I: Introduction
This working paper is intended to launch consultations on access to administrative or judicial proceedings in environmental matters in Member States.

2. The Aarhus Convention
On June 25, 1998 the EC signed the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention). The Aarhus Convention consists of three pillars, each of which grants the public different rights: The first pillar gives the public the right of access to environmental information, the second pillar gives the public the right to participate in decision-making processes and the third pillar ensures access to justice for the public. By signing the Convention, the EC acknowledged the objectives of the Aarhus Convention, one of which is granting the public broad access to justice.

The access to justice pillar of the Aarhus Convention has two major objectives: Firstly, it ensures the consistent and effective implementation of the Convention`s access to information and public participation provisions. Secondly, it contains provisions on the enforcement of law relating to the environment, by giving members of the public, where they meet the criteria if any laid down in its national law, the right to have access to administrative or judicial procedures to challenge acts and omissions by private persons or public authorities, which contravene provisions of national law relating to the environment.

In order to contribute to the implementation of the Aarhus Convention and to pave the way for the ratification of the Aarhus Convention by the EC, the Commission has already presented two proposals for directives containing provisions on access to justice. The proposal for a Directive on public access to environmental information guarantees that the right of access to information can be reviewed before a court of law or other body established by law in which the acts or omissions of the public authority concerned can be reviewed. With respect to the right of public participation in decision-making, the proposal for a Directive providing for public participation in respect of the drawing-up of certain plans and programmes relating to the environment and amending Council Directives 85/337/EEC and 96/61/EC provides, in accordance with the relevant national legal system, that the public concerned has access to a review procedure before a court of law or another body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive. Both these proposals are considered to be in line with the Aarhus Convention.
The working paper therefore concentrates on the enforcement of law relating to the environment by members of the public.

3. Enforcement of environmental law and The benefits of public participation in administrative or judicial proceedings

The shortcomings as regards enforcement of environmental law at local, national and international level have been pointed out for many years. At EU level the importance of public involvement in the enforcement of environmental law has been repeatedly stressed. It is thus in accordance with the Commission Communication on the implementation of Community environmental law of October 22 1996 and the Council and Parliament resolutions on the communication that the discussion has been launched on a proposal for a directive concerning access to justice in environmental matters.

The environment is often referred to as “our common heritage”. This also implies that more often than not there is no private appropriation of many parts of it, such as air, seas, wild flora and fauna. Thus a deterioration of the environment frequently does not cause an immediate reaction. And often there are no appropriate legal remedies available to ensure environmental protection and enforcement of environmental law.

Among other things, the lack of enforcement of environmental law is due to the frequent lack of a private interest as an enforcement driving force in contrast to other areas of Community law such as the internal market and competition. Enforcement of environmental law therefore mainly rests with public authorities, and is dependent on their responsibility, resources and goodwill. However, their ability to take into account the need to protect the environment may be limited by any of these or other factors. It is therefore important to provide for additional ways of improving enforcement of environmental law.

Where legal standing is limited to individuals who are directly affected, there are fewer incentives for the practical application of environmental law. Industries not complying with environmental obligations might have an economic advantage in comparison to those respecting all applicable standards. These disparities tend to lead to different standards of environmental protection in Member States and can create unequal conditions of economic competition and distort the smooth functioning of the internal market. It is thus also in the interest of the functioning of the Internal Market to ensure better enforcement of environmental law.

In order to secure more effective enforcement of environmental law it is necessary to look more widely than just at individuals directly affected by impairments of law relating to the environment. A possible way of achieving improved application and enforcement of Community environmental law is to ensure that representative groupings seeking to protect the environment are given legal standing to start administrative or judicial proceedings in environmental matters. Better access to such proceedings in environmental matters for these groupings would have a number of positive effects in relation to the implementation, application and enforcement of environmental law.
First, it will make it more likely that cases concerning the implementation of environmental law are resolved in accordance with the requirements of environmental law.

Second, it will have a general effect of improving practical application of environmental law, since potentially liable actors will tend to comply with its requirements in order to avoid proceedings.
Third, and probably most important, it will contribute to the enforcement of environmental law and by that to the protection of the environment. Enforcement of environmental law is crucial if it shall not only exist on paper but also be applied in practical terms. Enforcement of environmental law is a major issue for the Community in order to fulfil its obligations under Article 174 of the EC Treaty. Environmental legislation will only create the desired effects if its enforcement is made possible throughout the European Union. Ensuring that in cases of non-compliance, environmental law can be reviewed by means of administrative or judicial proceedings is a crucial point for the implementation of environmental law. These aspects will become even more important with the enlargement of the European Union. Instruments that aim at the enforcement of environmental law will therefore also strengthen the implementation of the “aquis communautaire” in the accession countries.

4. Competence of the European Community and the principle of subsidiarity

According to Article 175(1) of the EC Treaty, the European Community has the competence to take the necessary measures, to ensure the achievement of the objectives of Article 174 of the EC Treaty.
The European Community has to ensure the application of substantive provisions of legislation. This is especially true for sectors of law with a strong procedural impact, such as environmental law, in order to achieve coherent implementation of environmental law and a high quality of environment throughout the European Union. While Member States shall according to Article 175(4) of the EC Treaty finance and implement the environment policy, this does not exclude a competence of the European Community to enact procedural provisions to ensure the enforcement of substantive provisions of environmental law. Procedural provisions can be laid down in the same legal act as the substantive provisions or in an independent legal act. Either approach is legally possible and has no limiting impact on the legislative competence of the European Community.

Under Article 175(1) of the EC Treaty the European Community may also enact general and horizontal measures in order to achieve the objectives of Article 174 of the EC Treaty. This approach is an established tool of Community environmental legislation that has, for example, been followed for the Directive on the assessment of the effects of certain public and private projects on the environment (85/337/EEC), the Directive concerning integrated pollution, prevention and control (96/61/EC) and the directive on freedom of access to information on the environment (90/313/EEC). The information and participation rights granted under these directives do not only relate to information or projects, which are based on EC-derived law or have a European dimension. The same applies to legislative measures related to access to justice in environmental matters, so that, in order to achieve the objectives of Article 174 of the EC Treaty, a restriction to national law deriving from EC legislation would not be appropriate.

The future proposal neither falls under the third pillar of the EU Treaty nor under Article 65 of the EC Treaty. The third pillar of the EU Treaty only relates to criminal law, whereas judicial co-operation is regulated under Article 65 of the EC Treaty. However, the objective of the future proposal has no relation to criminal law or to judicial co-operation but will concentrate on the effectiveness of environmental protection.

For any Community instrument to be justified, it needs to comply with both aspects of the principle of subsidiarity: the objectives of the proposed action cannot be sufficiently achieved by Member States` action in the framework of their national constitutional system and can therefore be better achieved by action by the Community. The lack of enforcement of environmental law demonstrates that relying on the existing enforcement mechanisms and instruments of the Member States only is not sufficient to ensure in all cases a better enforcement of environmental law. Additionally, non-compliance with environmental law often has transboundary impacts. Better application and enforcement of environmental law contribute to improving the environment not only at national level but also beyond national borders. Therefore, the overall objective of guaranteeing a high level of protection of the environment in the European Union by strengthening the application and enforcement of environmental law is a subject matter with a clear EU dimension.

The future proposal will set out the minimum terms and conditions for access to administrative or judicial proceedings in environmental matters. The minimum standards are set out in a way to ensure better enforcement of law relating to the environment and do not exceed what is necessary in order to achieve this objective.

5. The Situation in the Member States
In its Resolution of 7 October 1997 the Council supported the Communication of the Commission on “Implementing Community Environmental Law” and invited the Commission to conduct a study on the existing systems within the Member States.

As a result, in March 1998, a comprehensive report was presented by the European Council of Environmental Law and the European Environmental Law Association on “Complaints and appeals in the area of environment in the Member States of the European Union” . It is a compilation of detailed reports on the various legal situations with respect to review procedures in the Member States.

On the basis of this report further activities were carried out within the working programme of the EU Network for the Implementation and the Enforcement of Environmental Law (IMPEL). In this context the Netherlands Ministry of Housing, Spatial Planning and the Environment organised, on 10 and 11 May 2000, a workshop on “Complaint procedures and access to justice in the field of the environment within the EU” and presented a comprehensive report with the same title. The report contains a detailed compilation and analysis of the access to review procedures for citizens and NGOs in environmental matters within the European Union.

The European Council on Environmental Law published in 2001 with the support of the European Community a study on “Non-judicial resolution of disputes in environmental law”. The report gives detailed information on the non-judicial complaint mechanisms in the Member States and analyses the possibilities of the public to institute non-judicial complaints.

The studies can be found on the following Internet address: http://www.europa.eu.int/comm/environment/aarhus/index.htm

The studies show the importance of increasing public participation in administrative or judicial proceedings in environmental matters. However, they allow the conclusion that the public and public interest groups do not have sufficient access to national courts and other national out-of-court proceedings in environmental matters. The ability of the public and of public interest groups to take part in environmental proceedings differs widely throughout the European Union. The approaches vary from a general legal standing for the public in environmental matters, to legal standing for representative groupings of the public under specific conditions and/or in specific fields of environmental law.

Restrictions on access to administrative or judicial proceedings in environmental matters arise in different ways. In many Member States the impairment of a “sufficient interest” or of a “right” has to be proven in order to bring a case before a court or another independent and impartial body. Such interests or rights are usually of a type which is easier to satisfy for a property-owner or economic operator but often impossible for environmental interest groups. Furthermore, appropriate procedures in environmental matters may not exist to enable environmental interests to be protected. Additionally, the costs of instituting actions, such as court fees, legal expenses, expert testimony or financial securities may be prohibitive and create a barrier to making use of standing rights.

The experience gained so far in practice with legal standing for environmental non-governmental organisations, shows that this instrument can enhance compliance with and implementation of environmental law . Experience also shows that proceedings instituted by non-governmental organisations are generally well-prepared and based on sound argumentation. Therefore, in comparison with other litigation, their complaints and court actions are over-proportionally successful and thereby contribute to better enforcement of environmental law. Even in Member States which provide for a broad legal standing, an overburdening of the courts or other independent and impartial bodies could not be found.

Part II: Content of the future proposal

1. General approach
The general approach of the future proposal will be to give certain members of the public access to a court or another independent and impartial body to review acts and omissions by public authorities or other legal and natural persons, which contravene provisions of law relating to the environment.

Generally, the instrument shall not distinguish between access to a court or another independent and impartial body justice as regards acts and omissions by an authority or by another legal or natural person. In both cases it would be possible to first involve public authorities, as they are primarily responsible for the enforcement of law related to the environment and then to provide for access to administrative or judicial environmental proceedings.

The approach has due regard to the Aarhus Convention and is based on existing administrative and judicial proceedings in the Member States.

2. objective of the future proposal
The future proposal aims at creating a framework of minimum requirements for access to proceedings in environmental matters and will thereby contribute to the achievement of the following objectives:
ensuring a high level of environmental protection;
providing for better enforcement and practical application of environmental law in the EU and in the accession countries; implementing the Aarhus Convention; promoting the process of good governance.

3. Definitions

3.1. Environmental proceedings
„Environmental proceedings“ shall mean: Administrative or judicial proceedings in environmental matters before a court or another independent and impartial body established by law to review acts and omissions of public authorities or other legal and natural persons. The decisions of the court or other independent and impartial body must have binding effect.

3.2. Administrative acts and omissions
"Administrative act” shall mean any administrative action under law relating to the environment by a public authority having legally binding and external effect. Administrative acts by a public authority shall include decisions on plans or programmes covered by law relating to the environment. “Administrative omission” shall mean a failure to act of a public authority if there was a legal obligation under law relating to the environment for the public authority to act.

3.3. Public authority
“Public authority” shall mean government or other public administration at national, regional and local level.

3.4. The public
“The public” shall mean one or more natural or legal persons, and their associations, organisations or groups.

3.5. The public concerned
“The public concerned” shall mean the public having a sufficient interest in instituting environmental proceedings or alternatively maintaining the impairment of a right, where the administrative procedural law of a Member State requires this as a precondition for instituting environmental proceedings.

3.6. Recognised non-governmental organisation
“Recognised non-governmental organisation” shall mean a non-governmental organisation that has been recognised by the competent authority.

3.7. Citizens` grouping
„Citizens` grouping“ shall mean members of the local public resident in the municipality affected by the contravention of law relating to the environment and forming a group whose objective is the protection of the local environment, which is composed of the requisite number of members as determined by Member States having regard to the local situation.

3.8. Non-profit basis
"Non-profit basis" shall mean not pursuing economic activities other than such that are ancillary to the main objective of the recognised non-governmental organisation.

3.9. Statute
"Statute" shall mean the rules of incorporation of a recognised non-governmental organisation or its statutory rules once the recognised non-governmental organisation has been created.

4. Scope of the Future Proposal

4.1. Law relating to the environment
The concept “law relating to the environment” shall be defined in general terms in order to cover relevant law relating to the environment. As environmental law is constantly developing, establishing a list of regulatory provisions which cover “law relating to the environment”, and continuously updating it would be difficult.
The definition would take into account two aspects:

The objective of the legislation should relate to the protection or the improvement of the environment, including human health and the protection or rational use of natural resources.

In order to be consistent with the Aarhus Convention, the definition should relate to the definition of environmental information as provided for under the Aarhus Convention and the proposal for a Directive on public access to environmental information. The definition shall therefore make reference to the following areas of environmental law: water and noise protection, air and atmospheric pollution, nature conservation and biological diversity, waste management, chemicals, including pesticides and biocides, biotechnology, as well as other emissions, discharges or releases into the environment.

4.2. Community and national environmental law
The future proposal shall encompass environmental law deriving from EC directives as well as environmental law of the Member States with national origin in order to ensure the enforcement of environmental law and a high quality of the environment throughout the European Union. Member States often have embodied EC directives in existing national environmental legislation so that it is not always easy to distinguish EC-derived environmental law and environmental law with national origin.

In order respect the principle of subsidiarity, Member States may decide at their discretion to exclude environmental law with national origin from the future proposal and restrict the instrument to EC-derived law relating to the environment alone (“opt-out possibility”). Once a Member State decided to make use of this “opt-out” possibility, its environmental law with national origin would be excluded from the scope of the future instrument. Thus, the future instrument would only apply to national environmental law derived from Community legislation.

5. Review of acts or omissions by public authorities by or other legal and natural persons

5.1. Environmental proceedings
It shall be left at the discretion of the Member States whether they would like to provide for proceedings before a court or before another independent and impartial body if the decisions have legally binding effect and the systems are in compliance with the provisions of the future proposal.

Members of the public which have legal standing under the future proposal shall have access to environmental proceedings to challenge the procedural and substantial legality of an administrative act or omission of a public authority in breach of law relating to the environment. If direct proceedings against the acts and omissions of natural or legal persons would be provided for, members of the public, which have legal standing under the future proposal shall also have access to direct proceedings.

The future proposal shall be without prejudice to other Community provisions on access to justice in environmental matters.

5.2. Administrative acts and omissions
Administrative acts by a public authority shall be subject to environmental proceedings where they contravene law relating to the environment. Administrative acts shall mean any administrative action under law relating to the environment of a public authority having legally binding and external effect. Such acts shall include decisions on plans or programmes covered by law relating to the environment. Administrative omissions shall be subject to review where a public authority had a legal obligation under law relating to the environment to act but failed to do so.

In cases where a public authority had a legal obligation to take enforcement measures against acts or omissions of another legal or a natural person contravening law relating to the environment, but failed to do so, access to environmental proceedings would be granted against the public authority competent for the enforcement of law relating to the environment.

This approach of “indirect” review of private acts and omissions ensures that the public authority still has the priority of action in the field of enforcement measures and thereby respects the enforcement systems of Member States.

However, the environment is, in most cases, affected by acts or omissions of natural or legal persons, who impair law relating to the environment. The failure of the public authority responsible or the enforcement of law relating to the environment to take action against such impairment only indirectly affects the environment. Therefore, it has to be considered whether proceedings should be possible directly against the natural or legal persons and whether Member States should provide for this possibility.

5.3. Request for action
Member States may provide that members of the public which have legal standing under the future proposal and which consider that a public authority is in breach of law relating to the environment have, as a first step, to lodge a request for action to the public authority before having access to environmental proceedings. If a third natural or legal person has contravened provisions of law relating to the environment or does not respect the conditions of a permit based on law relating to the environment, members of the public which have legal standing shall also give notice to this natural or legal person, where it can be identified. This enables the competent authority or other legal and natural person to repair the situation.

The competent public authority shall consider any such request for action unless being clearly unsubstantiated. The competent authority shall inform the member of the public who lodged the request, within sixty days after the request has been lodged, of its decision on the measures to be taken to ensure compliance with law relating to the environment or on the refusal of the request for action. The competent authority shall state the reasons for its decision.

Where the competent authority is unable, despite due diligence, to take a decision on a request for action within the abovementioned period, the competent authority shall, as soon as possible, at the latest within the abovementioned period, inform the member of the public who lodged the request, of the reasons for not being able to take the decision and when it intends to decide on the request. The competent authority shall take such decision within a reasonable time frame, having regard to the nature, extent and gravity of the breach of law relating to the environment, but not exceeding four months from the request having been lodged, and immediately inform the member of the public of the decision on the request once it has been taken.

Member States may provide that no environmental proceedings may be initiated prior to a maximum delay of sixty days after the member of the public who has legal standing has given notice to the competent public authority.

Member States shall ensure that, in so long as the abovementioned time frames to decide on a request for action are extant, national time limits for instituting environmental proceedings shall not expire.
The advantages of this approach are as follows:
cost and time effective system; respect of national priority rules concerning the intervention of public authorities against violations of environmental law; possibility of rectification for the public authority or for other legal and natural persons;stimulation of solutions outside of formal procedures.

Where the public authority has not taken a decision or has taken a decision on the request for action that is considered to be insufficient to ensure compliance with law relating to the environment within the time limits set out above or where the natural and legal person is not itself complying with law relating to the environment, the second step would be the possibility for the member of the public who lodged a request shall be entitled to institute environmental proceedings.

6. Legal standing
Member States have taken different approaches to legal standing in environmental matters. The approaches vary from a general legal standing for the public in environmental matters to a legal standing for representative groupings of the public under specific conditions and/or in specific areas of environmental law. The question arises which members of the public should enjoy privileged standing in environmental matters and under which conditions.

6.1. The public concerned
In most Member States the individual citizens have to show a “sufficient interest” or the impairment of a “subjective right” in order to have legal standing in environmental matters. The objective of this approach is to exclude an “actio popularis”. Introducing an unlimited standing for the public would therefore interfere to a large extent with the judicial systems of the Member States. Member States shall therefore ensure, within the framework of their national legislation, that members of the public concerned having a sufficient interest or alternatively maintaining the impairment of a right, where the administrative procedural law of a Member State requires this as a precondition, shall have access to environmental proceedings.

6.2. Citizens` groupings
Citizens` groupings often know best the local situation. As residents of their municipality they have a strong interest in the protection of their local environment. Therefore, citizens` groupings can play an important role as regards the protection of the local environment.
The local situation, as well as the density of population, differs in the Member States. Therefore, citizens` groupings shall have legal standing under the following conditions:

Citizens` groupings shall be composed of the requisite number of members, as determined by Member States having regard to the local situation. The members of the citizens` grouping shall be residents of resident in the municipality affected by the contravention of law relating to the environment.

The primary objective of the citizens` grouping shall be the protection of the environment or specific fields of the environment. The subject matter under review shall fall within the scope of the activities of the citizens` grouping and shall have direct adverse effects on the local environment.

The subject matter under review shall fall within the geographical area of activities of the citizens` grouping. This ensures that citizens` groupings would only be able to challenge acts or omissions that have direct adverse effects on the local environment.

In the event of transboundary cases the following rules shall apply: In order to have legal standing in the Member State where the impairment of law related to the environment has occurred, a citizens` grouping would, in addition to the criteria set out under (a)-(c), have to show that the impairment of law related to the environment committed in that Member State has or will have direct adverse effects on the local environment of its municipality.

6.3. Environmental non-governmental organisations
Environmental non-governmental organisations play an increasingly important role in ensuring environmental protection, both at national as well as at international level. There are many advantages to environmental non-governmental organisation participation in environmental proceedings. Among the general public these associations in particular play a prominent role as a defender of environmental protection where the environment has no vested interest defender. Moreover, environmental non-governmental organisations have evolved into organisations with highly trained, committed and professional staff enabling them to critically evaluate environmental objectives and to propose adequate solutions. Furthermore, environmental non-governmental organisations may be relied upon to raise important environmental issues and to elevate these issues to the public consciousness.

These organisations shall have legal standing under the following conditions:

Environmental non-governmental organisations shall be recognised as provided for in chapter 6.5 and 6.6 below.
The subject matter under review shall fall within the scope of the statutory activities of the recognised non-governmental organisations. Member States may grant legal standing without making reference to the statutes of the recognised organisations if they so wish. International non-governmental organisations that would like to enjoy legal standing in a Member State where they are not represented would have to show that the subject matter of the case is of Community environmental interest.

The subject matter under review shall fall within the geographical area of activities of the recognised organisations. This has the effect that the standing right is conferred on the most competent non-governmental organisation and excludes, for example, a local non-governmental organisation from southern Spain suing a public authority in Sweden. International non-governmental organisations that would like to enjoy legal standing in a Member State where they are not represented would additionally have to show that they are active in a representative number of Member States.

In the event of transboundary cases the following rules shall apply: In order to have legal standing in a Member State where an impairment of law related to the environment has occurred, an international, national, regional or local non-governmental organisation would, in addition to the criteria set out under (a)-(c), have to show that the impairment of law related to the environment committed in a Member State has or will have adverse effects for the environment of another Member State.

6.4. Legal standing for municipal or regional administrative bodies
Municipal or regional administrative bodies normally do not have legal standing to defend the general interest of the environment. Generally, these bodies are required, like other legal and natural persons, to prove a sufficient interest or the impairment of a right in order to have legal standing. Therefore, a municipal or regional administrative body would be able to sue a public authority for non-compliance with environmental law only if the act or omission of the public authority impairs its interests or rights. However, municipal and regional authorities play an important role in the enforcement of law related to the environment. Therefore, Member States shall ensure that, within the framework of their national legislation, municipal and regional administrative bodies shall have the possibility to institute proceedings in the general interest of the environment.

6.5. Criteria for recognising environmental non-governmental organisations
The legislation and practice of recognising environmental non-governmental organisations varies between the Member States, from taking into account criteria such as the objective of the environmental organisation, its organisational structure and the number of its members.

The future proposal shall provide some guidelines for the recognition of environmental non-governmental organisations in order to avoid different standards within the Member States. With a view to the principle of subsidiarity, the future proposal will not directly set out criteria for the recognition of environmental non-governmental organisations, but provide for guidelines. Member States are free, within these limits, to set out national criteria for the recognition
of environmental non-governmental organisations.

The guidelines will be based on criteria already existing in Member States. They will take into account the following aspects.
Member States shall ensure that the right to be recognised is given:
to international, national as well as regional and local non-governmental organisations whose primary statutory purpose is to protect the environment, or specific fields of the environment, and
which are acting on a non-profit basis, and which have been actively pursuing environmental protection according to their statutes since a certain period of time to be fixed by the Member States whereby Member States shall not provide that the active period needs to be longer than three years.

The criteria of the Member States shall not discriminate against any such organisation because of their seat, their size, their organisational structure or their active period.

In transboundary cases, a national regional or local recognised non-governmental organisation from one Member State might institute proceedings in another Member State. It would have to be decided for these cases whether the national non-governmental organisation would have to fulfil the criteria for recognition of the Member State where the environment has been adversely affected or where it intends to institute environmental proceedings. For an international organisation, it would have to be decided whether it has to fulfil the criteria of the Member State where it has its seat or where it intends to institute environmental proceedings.

6.6. Procedural aspects with respect to the recognition of non-governmental organisations Different possibilities can be taken into consideration with respect to the procedures for recognising environmental non-governmental organisations.

One possibility would be advance recognition. Advance recognition would mean that only environmental non-governmental organisations that have gone through a formal recognition procedure to be set out by the Member States would be granted privileged legal standing. Such an advance approach might create an additional administrative burden and might be a barrier for the non-governmental organisation for making use of their standing rights.

Another possibility would be ad-hoc recognition. In that case, the competent authority decides on a case-by-case basis whether or not the environmental non-governmental organisation, which asks for a request for action fulfils the criteria of recognition. This approach has the advantage of flexibility and of concentrating the recognition with the procedures foreseen under the future proposal.

It would also be possible to envisage a mixed approach between advanced and ad-hoc recognition. The advantage of such an approach would be enhanced efficiency and flexibility. Environmental non-governmental organisations that might institute proceedings not only in a specific case are likely to choose advanced recognition whereas others might choose ad hoc recognition. Member States can decide at their discretion to provide for ad hoc recognition or advanced recognition. In the circumstances where a Member State decides for an in advanced recognition it shall also ensure that access to expeditious ad-hoc recognition is available.

7. Interim Relief
Effective and timely remedies are often crucial to the successful defence of environmental interests in environmental proceedings. Therefore, some legislative systems provide for the instrument of suspensive effect. Most Member States do not provide for suspensive effect and introducing such an instrument in environmental matters would create major changes in the legal systems of these Member States.
Another effective remedy to ensure timely actions is interim relief. Member States shall ensure that access to environmental proceedings under this directive includes effective interim relief. The provisions on legal standing set out under chapter 6 shall also apply to interim relief. The time limits set out under Chapter 5.3 shall not apply.

8. effectiveness and costs
The Aarhus Convention requires and encourages different strategies that will contribute to overcome potential barriers to access to proceedings in environmental matters. Such barriers could be financial barriers and constraints, difficulties in obtaining legal counsel, a lack of environmental awareness within the courts or other independent and impartial bodies, weak enforcement of administrative or judicial decisions or the insufficient information to the public on proceedings in environmental matters.

Member States shall foresee that environmental proceedings provide effective and adequate remedies, that are fair, equitable, timely and not prohibitively expensive. Decisions under the future proposal shall be given or recorded in writing and shall be publicly accessible. Each Member State shall ensure that information about access to environmental proceedings is provided to the public. Member States shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to proceedings in environmental matters.

Date of the Resource: 
Thursday, April 11, 2002
Countries and Regions: 
Resource Type: