On 16 and 17 April, an international conference on access to justice in environmental matters was held at the Supreme Administrative Court in Brno. The conference was organized by the Ministry of Environment of the Czech Republic in the scope of the Czech EU presidency. More than 80 experts from 17 European countries (judges and assistants form higher courts, lawyers of ministries, university pedagogues, attorneys and others) took part on it.

The participants of the conference especially addressed the experience with practical application of the “Aarhus Convention” 1) at courts in individual EU countries. In the morning sessions, e.g. Sir Robert Carnwath, Lord Justice of Appeal from UK, Luc Lavrysen from the Belgian Constitutional Court and Jerzy Jendroska, member of the Aarhus Convention Compliance Committee presented their lectures. 2) The speeches concerned i.a. the role of courts and judges with regard to the protection of the environment, the accessibility and efficiency of the judicial protection on that field or the application of the Aarhus Convention trough the EC law.

The lectures were concurred by working groups, in the scope of which the participants discussed about possible solutions of the model cases, which reflected typical problems related to legal protection of environment before national and EU courts. 3) The cases of the Compliance Committee, which addressed failures of some parties to the Convention concerning access to justice, were also subject to the working groups’ discussions. 4)

Thanks to support by International Visegrad Fund (www.visegradfund.org) and Ministry for Housing, Spatial Planning and Environment of the Netherlands (http://www.vrom.nl/), a number of environmental law NGOs – Environmental Law Service (Czech Republic), VIA IURIS (Slovakia), Environmental Management and Law Association (Hungary), , ÖKOBÜRO (Austria) and Estonian Environmental Law Center (Estonia) and Environmental Law Center (Poland) actively participated on the conference. All of these organisations except Environmental Law Center (Poland) are members of the Justice & Environment (J&E) network (www.justiceandenvironment.org). The NGOs lawyers prepared background material for the conference 5) and participated actively at the plenary discussions as well as working groups.

The conference discussions have shown that similar problems concerning access to environmental justice occur in most of the parties to the Convention. On the other side, there are also considerable differences among the individual countries with regard to fulfillment of the Convention’s requirements. This disunity clearly does not correspond to the declared goals of the Convention. It is also not desirable from the aspect of the Convention’s position as part of EC law, which should also indicate the requirement for a basic common standard of its application in all EU member states.

The differences appear for example in the scope of acts subject to judicial review. It is obviously not in accordance with the Convention, that some countries apply so strict criteria in cases concerning e.g. industrial accidents, operation of unauthorised waste dumps or exceeding emission of harmful substances or noise limits, that they actually prevent access to courts to all or nearly all affected subjects (including non-government organisations). Accordingly, the fact that the courts only deal with the procedural mistakes of the authorities and refuse to review also the substantive arguments is not in compliance with the requirements of the Convention. The efficiency of the judicial protection, which cannot be reached without availability of preliminary measures, appears to be a key element for the practical fulfillment of the rights granted by the Convention.

In some countries the courts have acceded to direct application of the Convention, which has mostly led to an increase in standards of legal protection of environment and affected individuals. In other states the courts have refused the option of direct application. Regardless of the issue of whether the Convention is “capable of direct application” from the aspect of national laws, the courts should always interpret the relevant national provisions in accordance with the requirements of the Convention. In most cases this should be sufficient to fulfill its goals. This is also connected to the question of the scope of access to the European Court of Justice in environmental matters, with regard to the decisions and acts of the EU institutions, which has been interpreted very restrictively so far.

The Aarhus Convention is a unique international legal instrument, which combines the subject of environmental protection with human rights and simultaneously with the responsibilities of public institutions and also individuals and their associations. Thanks to its uniqueness the Convention has induced and still induces many expectations. However these expectations are frequently disappointed by the formal approach by courts and other public institutions. It would be shame if these vain expectations would lead to fall of people’s interest and willingness to become actively involved in the environmental protection.

Notes

1) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, adopted in Aarhus in 1998

2) The full program of the conference is bellow the notes.

3) The Background materials for the working groups can be downloaded here.

4) Information about the Compliance Committee of the Aarhus Convention, including all cases handled before it, can be found here.

5) The background material for the conference prepared by the NGO lawyers is here.

International conference on the implementation of the Aarhus Convention in practice.

Brno, 16 and 17 April 2009

Thursday 16 April 2009

8:30-9:00 Registration of participants

9:00-9:25 Welcome and introductory words

Session I: General Introduction of the Aarhus Convention

(Moderator – M.Bobek, Supreme Administrative Court, Czech Republic)

9:25-9:50 Lecture 1: The Role of Courts and Judges with Regard to the Protection of Environment

R. Carnwath (Lord Justice of Appeal, UK)

9:50-10:00 Questions, comments

10:00-10:30 Lecture 2: – Introduction of the Aarhus Convention (overview of the content with main emphasis on the access to justice, importance for EC law, Compliance Committee, etc.)

L. Lavrysen (Constitutional Court, Belgium)

10:30-10:40 Questions, comments

10:40-10:55 Coffee break

Session II: Experience with Application of the Convention in Practice

(Moderator – M.Bobek, Supreme Administrative Court, the Czech Republic)

10:55 – 11:25 Lecture 3 – Aarhus Convention in the Court’s Practice (judge’s view)

K. Kuusiniemi (Supreme Administrative Court, Finland)

J. Passer (Supreme Administrative Court, the Czech Republic)

11:15 – 11:25 Questions, comments

11:25 – 11:45 Lecture 4 – Problems of Application of art. 9 of the Aarhus Convention (public concerned view)

P.Černý (Environmental Law Service/J&E, the Czech Republic)

11:45 – 11:55 Questions, comments

11:55– 12:30 Plenary discussion

12:30-14:00 Lunch

Session III: Working Groups on Access to Justice according to the Convention

14:00-14:15 The methodology of the working groups

14:15 – 16:00 Working groups – moderated discussion on model cases

16:00-16:20 Coffee break

16:20 – 17:45 Presentation of the working groups outcomes, plenary discussion

Friday 17 April 2009

Session IV: Aarhus Convention and the EC Law

(Moderator – F.Dienstbier, Faculty of Law, University of Olomouc, the Czech Republic)

9:30 – 10:30 Lecture 5:

Implementation of the Aarhus Convention “Trough” the EC Law

Proposal of the Access to Justice Directive

R. Holdgaard (Ministry Foreigen Affairs, Denmark)

M. Smolek (Ministry Foreigen Affairs, the Czech Republic Representative at ECJ)

Ch. Pirotte (European Commission-DG Environment)

10:30-10:45 Questions, comments, discussion

10:45 - 11:05 coffee break

Session V: The Compliance Mechanism of the Convention

(Moderator – F.Dienstbier, Faculty of Law, University of Olomouc, the Czech Republic)

11:05 – 11:40 Lecture 6: The Compliance Mechanism of the Convention (overview of the decisions of the Compliance Committee)

J.Jendroszka (University of Opole, Aarhus Convention Compliance Committee)

11:40 – 12:00 Questions, comments, discussion

12:00-13:30 Lunch

13:30 – 14:45 Working groups - discussions about selected decisions of the Compliance Committee on Article 9 of the Convention

14:45-15:00 coffee break

15:00-16:30 Closing plenary discussion