AJA v Spain before the Aarhus Convention Compliance Committee regarding decision-making on a residential development project in the city of Murcia

To: Compliance Committee of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998)

Via: Mr.  Jeremy Wates Secretary to the Aarhus Convention United Nations Economic Commission for Europe Environment and Human Settlement Division Room 332, Palais des Nations CH-1211 Geneva 10, Switzerland Phone: +41 22 917 2384 Fax: +41 22 907 0107 E-mail: jeremy.wates@unece.org From: Association for Environmental Justice (Asociación para la Justicia Ambiental, AJA), Spain Communication on non-compliance by Spain with the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Murcia Urbanization Project on Huerta Tradicional)

SUMMARY
1.  The communication claims non-compliance of Spain with its obligations under article 4, paragraph 8; article 6, paragraph 1 a), paragraph 2 a) and b), paragraph 4; article 9, paragraphs 2, 3, 4 and 5.

2.  This communication addresses an urbanization project developed in Murcia city, Spain. The project approval went through complicated and lengthy procedure, which basically covers two major issues: land and urbanization (construction) issues.  No specific environmental decision making procedure was applied to project approval.  The project is about development of a residential area to construct houses for young families (Joven Futura project).  The city of Murcia decided to assign special lands of traditional for the use of the project (Huerta Tradicional).

3.  The communicant, Association for Environmental Justice, is a non-profit environmental public interest law organization based in Spain.  The communicant was providing help and legal advice to the public concerned affected by the project.

4.  The communication claims that by imposing a fee on environmental information requested from public authorities and related to decision-making having environmental impacts, Spain was not in compliance with Article 4 paragraph 8 and Article 6 paragraph 6.

5.  The communicant claims that procedures of decision making, including on land planning and project itself, violated public participation obligations under Article 6 paragraphs , paragraph 1 a), paragraph 2 a) and b), paragraph 4.

6.  The communicant claims that denial by the courts to suspend decisions taken by local authority in the court law suit, where the merits of the case relate to lack of EIA in decision making process, as well as length of the procedure on granting suspension, violated requirements of Article 9 paragraph 4.

7.  Lastly, the communicant claims that imposing of costs in a court proceeding related to suspension measure (of the governmental decision challenged) on a non-profit organization, while no assistance mechanisms were available to affected public, constitutes a violation of the requirements of paragraphs 4 and 5 of the Article 9, and, in this connection, of the paragraphs 2 and 3 of Article 9.

I.  The Communicant
8.  The communication is submitted by Association for Environmental Justice (Asociación para la Justicia Ambiental, AJA), Spain, hereinafter AJA.  AJA is a registered non-governmental environmental public interest law organization founded in 2004.

9.  Contact Information:

Address: P° Maria Agustin, 3, dcha.  E-50004 Zaragoza, Spain.

Tel.  0034 976 20 20 76 Fax 0034 968 22 71 91 Contact Person: Eduardo Salazar Ortuño, co-founder & lawyer.

Tel.  0034 968 21 14 39/ 0034 637432002 E-mail: eduardo.salazar@elaw.org II.  State Concerned
10.  This communication concerns non-compliance with the Aarhus Convnetion by Spain.  Spain signed the Convention on June, 25, 1998 and ratified on Dec, 29, 2004.

III.  Confidentiality
11.  The communication is not confidential.

IV.  The issue and facts The project
12.  In February 2003 a private company Joven Futura (Future Youth) made a proposal to Murcia City Council to start negotiations about development of a residential area to construct houses for young families covering 92,000 square meters.  The proposal was to conclude a special agreement between the company and Murcia City Council to enable urbanization of wide areas of lands near Murcia city.

13.  The proposal for the agreement put forward a special requirement to be included into the agreement – to re-classify the land slot in question into another category of lands.  Such a re-classification would constitute part of the city’s obligations under the proposed agreement.  Namely, the company proposed that the City Council submits for re-classification part of the lands into “residential lands” (i.e.  lands where residential houses can be constructed) and groups them into a single residential land slot.

14.  After various negotiations, in July 2003 Murcia City Council approved the agreement, which afterwards went through authorization by local government.  On October 24, 2003, the agreement was published in the Official Journal of Murcia Region.  The agreement included the obligation by city council to re-classify 111,000 square meters land slot, which will become property of Joven Futura and where the company will construct approximately 733 apartments.

15.  At the time of conclusion of the agreement, the lands in question were classified as “non-residential” (Sp: no urbanizable) by Murcia city General Plan (Plan General de Ordenación Urbana de Murcia), as revised in Jan 31, 2001.  This latest revision of Murcia city General Plan was subject to environmental impact assessment (EIA) before its adoption in 2001, as required by national and community (EC) law.  The EIA verified and justified landscape, historical, cultural, environmental, scientific and archeological values of lands to classify some of them as non-residential.  Such non-residential lands are the lands which are subject to special protection regime incompatible with urbanization of such lands.

16.  The land slot allocated for the project is located on the territory of Huerta Tradicional (traditional harden) being lands under special protection under Murcia city General Plan “because of its framework perimeter value for traditional gardens…increasingly occupied by urban expansion on North and South; because of prevailing fruit gardens with low construction density; because of its landscape and environmental significance deriving from the above mentioned values, which conservation is essential for the quality of the environment of the metropolitan system of the valley in its entirety” (Article 7.4.1.  of the Mucia City General Plan of 2001).  Being granted a protection category of “Huerta Perimetral” the lands were classified as non-residential. 
17.  In May 2004 Urbanization Unit [of municipality] submitted to the City Council draft Modification to the city General Plan for the new residential zone (ZM-Ed3, Espinardo), as well as a documents called “Environmental Accident Study” (developed by the company) and “Draft EIA for Creation of Urban Zone ZM-Ed3, Espinardo”.  The latest document started with a reference to requirement in legislation to develop EIA for the modification of city plans and it pretends to be an environmental impact assessment.  Environmental Accident Study claims that the lands proposed for re-classifcation “have no special significance as garden”.

18.  On June 24, 2004 Murcia City Council decided to make a public notice about Modification to the city General Plan No50 for establishment of a residential zone ZM-Ed3, Espinardo.  It suggested development of a medium density residential area, i.e.0,6 m2/m2.  The notice was published on July 22, 2004 in Murcia Region Official Journal and set one month for public comments period.  The Council at the same time made a request to environmental authority to clarify whether such modification requires an EIA.

19.  On September 15, 2004, after public comments period was over, the company Joven Futura requested a change of area density into 0,95 m2/m2, that being the highest density category of residential lands in Murcia.  Chief of the city Urban Planning department signed a report saying this “light change” is not significant and does not require new public comment procedure.  On Sep 21, 2004, the project was submitted by the city Urbanization Board for initial approval together with a decision to notify affected owners and authorities about initial approval.

20.  On Sep 24, 2004, Environmental Quality Office adopted resolution saying that no EIA is needed for this modification of General Plan.  The resolution was based on the decision taken at extraordinary session of EIA Commission held on Sep 23, 2004 (the Commission is a body competent to take pre-screening decisions under EIA legislation).  Its decision stipulated that the lands in questions were abandoned because of its low agricultural, environmental values as well as profitability. 
21.  Since the decision to submit the project for initial approval, various affected persons notified the City Council about their concerns.  Over 2,000 people expressed its disagreement with proposed re-classification of lands, including owners of lands and houses.  The key issues raised where absence of EIA; legality of agreement between City Council and Joven Futura since neither was owner of the lands subject to re-classification; landscape and environmental values of the lands protected by city General Plan; others.

22.  On April 28, 2005, City Council adopted modification No50 to city General Plan, re-classifying the lands in question as “residential”.  Consequently, a Land Slot Plan ZA-Ed3 (Plan Parcial) was adopted in 2005 setting down details of the future development in the area (residential construction). 
23.  The construction project itself was approved by the resolution of the City Government on April 5, 2006, following its “initial approval” in 2005.  The project has official name as “Urbanization Project UA1 of the Land Slot Plan ZA-Ed3”.  No EIA study was ever done for the project.

24.  Soon, after project approval construction works began.  After the construction works began, numerous remaining of the Roman Empire, Germanic folks and Al-andalus culture times were found on the lands under construction.  In some parts, the construction works were imposed limitations to protect some of the archeological sites discovered.  See more information about the project: http://www.jovenfutura.es Public efforts to exercise its rights to information and participation
25.  The public made numerous efforts to impact all the decisions taken at various stages of the decision making process described above.  In particular, the Asociación de Vecinos Senda de Granada Oeste (Association of Senda de Granada Oeste Neighbors) had been a leading non-governmental organization trying to impact the decision-making process (hereinafter – Association).  The Association united owners and users of traditional lands situated in the project development area and affected by it.  Most of the facts mentioned in this communication refer to the actions by this Association or its representatives (AJA, the communicant).

26.  Most documents related to the project adoption had to be requested from Murcia City Council and other relevant authorities, including documents on studies made, officials reports, public participation process.  The city imposed a charge on copies of the documents requested of 2 Euros/page, which the Association paid in all cases.  One example of a receipt is attached to this communication (Annex 3).  In some cases, price list indicates even higher prices for copies (such as city land plans), see Fees Chart of Murcia Municipality Services of 2008, Annex 4).

27.  Development and adoption of the agreement between City Council and Joven Futura provided for no public participation opportunities, including for the owners of land slots within project area.  The public was just informed about conclusion of the agreement by the City Council via its publication in the Official Journal of Murcia Region.

28.  Adoption of the Modification No 50 to city General Plan included one month period for public comments, as described above.  On September 29, 2004, the Association made numerous comments, including, inter alia:

- illegality of the agreement and re-classification of lands itself since no consultations were made with owners of the lands affected (most part of the lands affected by the agreement);
- lack of reasons for re-classification of lands that were classified as non-residential a few years before for the period of 25 years;
- irreversible loss of landscape and environmental values in case project is implemented on those lands;
- the need to conduct EIA, including to enable effective public participation.

29.  These comments were never answered or acknowledged by the City Council.

30.  Similar comments were made in written by the Association for the draft Land Slot Plan and draft “Urbanization Project UA1 of the Land Slot Plan ZA-Ed3” in 2005 and 2006 respectively.  The City Council didn’t paid attention to the arguments from the Association at to the need for EIA, nor to the official reports from Water Administration (State) and Agricultural Administration (Regional).

Administrative and Court Proceedings
31.  The Association (with the help of AJA, the communicant) initiated a number of administrative and court proceedings.  Practically all decisions were challenged on all decision-making stages, with no success, though.  Some of them are explained in details below as much as they are relevant to this communication.

32.  On Jan 4, 2005, the Association made an administrative claim to annul the Resolution by Environmental Quality Office (saying that no EIA is needed for modification of General Plan) On July 27, 2005, the claim was rejected as inadmissible.  The key reasoning for rejection being that the decision not to conduct an EIA is of procedural nature and does not decide on the merits of the issue (modification of General Plan).  Inadmissibility decision explained that the modification could happen even if EIA would have been done and if it would have resulted in a negative conclusion.  This put an end to administrative proceedings as to Modification No50 to City General Plan.

33.  Later on, Modification No50 was challenged in the Administrative Proceedings Court (Sala de lo Contencioso-Administrativo Del Tribunal Superior de Justicia de Murcia).  As a part of this lawsuit, the Association requested, as a precautionary measure, the court to suspend Modification No50 to City General Plan.  Request for precautionary measure was argued based on national legislation and Aarhus Convention (article 9.3 and 9.4).

34.  The court rejected this request for the reason “because the decision on Modification No50 cannot have irreversible impact on the environment since the Modification No50 does not grant directly the right to start development of the area and [the development of the project] is subject to future approval by other decisions” (court case 487/2005).

35.  On July 4, 2006, the Association filed administrative lawsuit to the same court challenging Urbanization Project UA1 of the Land Slot Plan ZA-Ed3 (finally adopted on April 5, 2006).  In this lawsuit the Association, inter alia, requested the court to suspend the decision on final adoption of “Urbanization Project UA1 of the Land Slot Plan ZA-Ed3”.

36.  In addition to arguments related to precautionary principle of national and international environmental law, the Association argued that both requirements of national law for precautionary suspension are satisfied in this case (those two being periculum in mora and fumus bonis iuris requirements).  In brief, the Association argued that adoption of the project gave last green light to the construction works and if the lands go under construction this will result in irreversible lost of environmental and historical values (periculum in mora).  As to fumus bonis iuris, the Association argued obvious violations of EIA and land laws, evident violation of the general interest of the public in preservation of the environment.

37.  On March 12, 2007 (eight months after requested, and eleven moths of construction) the Administrative Proceedings Court took a separate decision on application of precautionary measure (suspension).  The court rejected the request based on consideration of periculum in mora element only.  The court noticed that preservation and assessment of environmental values was not part of the project decision, but subject to consideration and subject of preceding decisions, namely Modification No50 and Land Slot Plan (Plan Parcial).  Since neither of them of suspended by courts, the project cannot be suspended as well, the judgment reads.  In addition, the court said it has no strong evidence of existence of environmental, cultural and agricultural values which could be irreversibly damaged by project implementation (case 539/2006, Annex 1 to this communication).

38.  On April 17, 2007, the Association filed an appeal to the decision of March 12, 2007.  In addition to periculum in mora and fumus bonis iuris requirements, the Association argued that precautionary suspension of project approval should not be linked to earlier decision and the need to preserve newly discovered archeological sites.

39.  On December 21, 2007, the Administrative Proceedings Court (Section One) rejected the appeal based on similar arguments as first instance court.  First, the court noticed presumption of legality of administrative acts and exceptionality nature of suspension measure.  Second, in its opinion environmental values were subject of previous (land modification) decisions, which were challenged and pending in courts but not suspended.  Third, urban issues in question (city planning and development) are one of the fundamental general interests while plaintiffs express private interests.  Fourth, an environmental accident study was done at the time of land planning (thought not an EIA).  Lastly, the court said that certain limitations were imposed on construction works in some places to protect some of the newly discovered Roman remainings (court case 953/2007, Annex 2 to this communication).

40.  In its decision of Dec 21, 2007, the court imposed all costs on the plaintiff (the Association).

V.  Applicable Articles of the Convention and Violations Claimed Costs of Documents
41.  Paragraph 6 of Article 6 says:

“6.  Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law, free of charge, … to all information relevant to the decision-making […]”
42.  As explained above, the public concerned requested documents related to decision-making process (at various stages the requests were relates to land decisions or project decisions).  The City Council of Murcia imposed a charge of 2 Euro/page of copy.  This clearly violates the requirement of Article 6 to “give access for examination …free of charge ..  to all information relevant to the decision making…”.

43.  Article 4, paragraph 8 of the Aarhus Convention says:

“8.  Each Party may allow its public authorities to make a charge for supplying information, but such charge shall not exceed a reasonable amount.  […]”
44.  In a situation where the public concerned has to pay for all the documents relevant to decision-making which affects its wellbeing and made by the city authorities where they live, a fee of 2 EUR/page cannot be seen “reasonable”. 
45.  In addition, 2 EUR page cannot be seen as costs covering the actual expenses made by the city council in order to produce.  Clearly, the wording of paragraph 8 means that the charge for supplying the information is possible to compensate direct costs of information supply incurred by the authorities, i.e.  it prohibits imposing a charge as a way to earn money.  Therefore, the charge of 2 EUR per page for any information requested is not in line with “reasonable amount” requirement.

46.  Finally, the amount of charge is excessive if compared to the level of life in Murcia.  Average household budget per month Murcia is 2,337 EUR and 782 EUR per person (2006, source Instituto Nacional de Estadística, www.ine.es).  That means, requesting just 390 pages of documents, a person is giving up it monthly budget.

47.  This constitutes violation of paragraph 8 of the Article 4.

Lack of Public Participation [Applicability of Article 6]
48.  Article 6 is applicable to decisions having a permitting nature of projects covered by the Annex I of the Convention:

“1.  Each Party:

(a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I; (b) Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment.  To this end, Parties shall determine whether such a proposed activity is subject to these provisions; and […]”
49.  Modification No50 to city General Plan, re-classifying the lands in question as “residential” on April 28, 2005 and consequently adopted Land Slot Plan ZA-Ed3 (Plan Parcial) setting down details of the future development in the area (residential construction) are land-related closely related to project itself since they specify what kind of activity is envisaged on the lands subject of those decisions.  Both clearly fall under decisions “on whether to permit proposed activities” as required by para.1(a) of Article 6.  The Compliance Committee has said considered that certain land decisions amount to Article 6 decisions if they lead to specific activities to be implemented on such lands (see, e.g.  Albania ACCC/C/2005/12; ECE/MP.PP/C.1/2007/4/Add.1, 31 July 2007, para’s 65-74).

50.  The resolution on final approval of the construction project approved by the the City Government on April 5, 2006, is a decision on project itself.  It also falls under decisions “on whether to permit proposed activities” as required by para.1(a) of Article 6.

51.  In the opinion of the public (the Association and the communicant) all three decisions mentioned above require environmental impact assessment under national and European Community legislation.  Therefore, the decision in questions fall under “activities listed in annex I”, namely paragraph 20 of Annex I.

52.  Alternatively, the decisions in question fall under paragraph 1(b) of Article 6
53.  Therefore, Article 6 is applicable to decisions on a) Modification No50 to city General Plan, b) adoption of the Land Slot Plan ZA-Ed3 (Plan Parcial), and c) final approval of project “Urbanization Project UA1 of the Land Slot Plan ZA-Ed3”.

[violation of public participation obligations under Article 6]
54.  While Aarhus Convention has direct applicability in Spain, the government made certain legislative efforts to transpose (implement) its provision into national law, including via implementation of relevant EC legislation in relevant area.

55.  Like in many other countries of UN ECE region, public participation procedures are well prescribed in the EIA laws.  Therefore, early and effective public participation in environmental decision making in Spain can only happen through EIA legislation.  This due not only to the procedures available, but also reflects the substance of the effective participation: if no environmental study is made, the public cannot have access to reports and other documents evaluating environmental and health risks, which would enable the public to develop and express its own science-based opinion on the issue.

56.  It is clear that screening decision not to develop EIA for Modification No50 was taken through “emergency” procedure and cannot be possibly considered as allowing the public to affect it because of timing.  It also questions its impartiality and scientific reasoning.  The Association challenged in court screening decision as lacking necessary legal and scientific arguments.

57.  This violates the requirement of paragraph 1(a) of the Article 6.

58.  The fact that one of the key elements of the draft decision (prohibitively high density of construction) was changed (introduced) after public comments period reveals that the public was not aware of the nature of the decision to be taken; therefore, the public was not adequately and effectively informed about the decision-making.

59.  This violated the requirement s paragraph 2 a) and b) of th Article 6.

60.  Lastly, all decisions taken (land and project related) resulted from urban agreement between the city and the developer.  The public was never informed about plans to develop and sign the agreement, neither about its drafts.  Therefore, public participation opportunities came at a time when the city of Murcia already assumed legal obligations towards the developer as to land and project decisions.

61.  This violated the requirements of paragraph 4 of the Article 6.

Financial Barriers
62.  The Association was exercising its rights to challenge decisions in question based on Article 9 of the Aarhus Convention, para’s 2 and 3.

63.  The decision by the Administrative Proceedings Court on the appeal to denial of precautionary measure put all the costs on the plaintiff (the Association).  The costs were 2148 Euros, mostly covering lawyers’ fee of the City Council.

64.  In this regard, paragraphs 4 and 5 of the Article 9 say:

“4.  […] the procedures referred to in paragraphs 1, 2 and 3 above shall not prohibitively expensive.  […]
5.  […] each Party shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial […] barriers to access to justice.”
65.  Costs of the access to justice procedures are well recognized as an element for the procedures to be fair and equal, as required by the Article 9 itself (see e.g.  report of the second meeting of the Task Force on Access to Justice, para.19).

66.  Similarly, high costs of litigation are also considered as illegal barrier in the exercise of the right to fair trial (e.g., in the jurisprudence of the European Court of Human Rights).

67.  The plaintiff in the case was appealing court decision on suspension of administrative decision challenged.  The plaintiff is a non-profit organization of farmers that use traditional methods of land use and are affected by the decision allowing huge construction on the lands in the area.

68.  The responded in the case is a local public authority, completely dependent on taxes paid the residents of the area, including the members of the Association.

69.  As mentioned, average monthly household budget in Murcia is 2,337 EUR.  Simple conclusion follows that the costs imposed in this one proceeding are full monthly budget of a local family or three monthly budget of a signle person in Murcia (with 782 Euros of average monthly budget).  Therefore, none of the members of the Association alone can afford litigation costs related to challenging the decisions (land and project related) in question.

70.  No state assistance mechanisms are in place that could have been used by the members of the Association.  The Association appears to be the only possibility for the affected public to protect their environmental rights in court.  In addition, the Association is reflecting common and group interests of the many residents of the area.

71.  It is clear that the costs imposed on the Association are too high if compared to average personal income in the area and the non-profit status of the Association.

72.  The decision by the court to pay the costs of local authority threatens all pending court cases related to the issue, and at least three court proceedings related to decisions in question.  The costs imposed relate only to one separate proceeding (on suspension measure) in one of the court proceedings mentioned.

73.  The decision by the court can also have threatening effect on other members of the public and the Association itself, and therefore can impose an effective barrier on their right to access to justice in environmental matters.

74.  Based on the above, imposing of costs in a court proceeding related to suspension measure (of the governmental decision challenged) on a non-profit organization, while no assistance mechanisms were available to affected public, constitutes a violation of the requirements of paragraphs 4 and 5 of the Article 9, and, in this connection, of the paragraphs 2 and 3 of Article 9.

Remedies (suspension of acts)

75.  Article 9 paragraph 4 says:

“4.  […] the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate […]”
76.  The Association, in exercising its rights under paragraphs 2 and 3 of the Article 9, file a lawsuit challenging Modification No50 to city General Plan.  At the same time, a request for precautionary measure (suspension of the act) was filed to the court.  The court in its judgment (court case 487/2005) denied granting suspension of the act since in the court view “the decision on Modification No50 cannot have irreversible impact on the environment since the Modification No50 does not grant directly the right to start development of the area and [the development of the project] is subject to future approval by other decisions”.

77.  When city government approved the construction project itself, the Association filed a lawsuit challenging the decision to approve the project.  Similarly, it requested the court to suspend the decision for the time of court deliberations.  The court in a separate judgment denied granting suspension based on the reason, in particular, “that preservation and assessment of environmental values was not part of the project decision, but subject to consideration and subject of preceding decisions, namely Modification No50 and Land Slot Plan (Plan Parcial).  Since neither of them of suspended by courts, the project cannot be suspended as well” (case 539/2006).  When appealed, this judgment was upheld by a higher court (case 953/2007).

78.  As clearly seen from the above, the public affected by the decision was put in a situation where it has no possibility to be granted suspension and guarantee due process.

79.  Granting suspension of the decision challenged was crucial to enable effective access to justice.  The decisions for which suspension was requested, were challenged, inter alia, for the lack of environmental impact assessment.  Therefore, the public could only raise its environmental concerns only through court procedure.  However, it would be only possible if the procedure itself provides for a possibility of meaningful and effective outcome.

80.  While it appropriateness of the suspension sought may be questioned by the government, the way courts apply the procedure of granting the suspension is in violation of due process requirements, in particular the provisions of Article 9 cited above (injunction relief).  The Association’s lawsuit had been considered through a procedure which provides for no possibility of effective outcome because of irreversible material damage caused during consideration period.

81.  Finally, the procedure of granting the suspension was prohibitively lengthy.  In the case 539/2006 (challenging the project) it took the court eight months to take a decision on application of the suspension sought.  Even if granted, the suspension would be meaningless since it would happen eleven months after decision taken and construction works started.

82.  Based on above, the procedure of granting denial of suspension, as well as reasons for denying it, violated the requirements of paragraph 4 of the Article 9.

VI.  PENDING DOMESTIC REMEDIES
83.  On March 18, 2008, the Association (with the help of communicant) filed Constitutional Redress claim (Amaro Constitucional) to the Constitutional Court of Spain related to costs of litigation and suspension of project approval.

84.  Several lawsuits related to project approval and land decisions are still pending in administrative courts.  VII.  Conclusions
85.  Summarizing the above, the communicant submits that Spain violated its obligations under article 4, paragraph 8; article 6, paragraph 1 a), paragraph 2 a) and b), paragraph 4, paragraph 6; article 9, paragraphs 2, 3, 4 and 5.

86.  In particular, the communicant claims that:

a) by imposing a fee on environmental information requested from public authorities and related to decision-making having environmental impacts, Spain was not in compliance with Article 4 paragraph 8 and Article 6 paragraph 6.

b) procedures of decision making, including on land planning and project itself, violated public participation obligations under Article 6 paragraphs , paragraph 1 a), paragraph 2 a) and b), paragraph 4.

c) denial by the courts to suspend decisions taken by local authority in the court law suit, where the merits of the case relate to lack of EIA in decision making process, as well as length of the procedure on granting suspension, violated requirements of Article 9 paragraph 4.

d) imposing of costs in a court proceeding related to suspension measure (of the governmental decision challenged) on a non-profit organization, while no assistance mechanisms were available to affected public, constitutes a violation of the requirements of paragraphs 4 and 5 of the Article 9, and, in this connection, of the paragraphs 2 and 3 of Article 9.

Respectfully submitted, [signed] Eduardo Salazar Ortuño LAWYER Association for Environmental Justice Asociación para la Justicia Ambiental, AJA, Spain Attachments:

Annex 1: Court judgment of March 12, 2007 (case 539/2006)

Annex 2: Court decision of Dec 21, 2007 (case 953/2007)

Annex 3: Payment Receipt for Provision of Information Annex 4: Fees Chart for Services by Murcia City Council (2008)

Date of the Resource: 
Wednesday, December 29, 2004
Countries and Regions: 
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