Participatory Rights in the Environmental Decision-Making Process and the Implementation of the Aarhus Convention: a Comparative Perspective
Eva Lohse/Margherita Poto
Introductory remarks on the idea and the purpose of a German-Italian Dialogue on Participation in Environmental Decision-Making (Poto/Lohse)
Part I: Perspectives on participation – rationales, protected interests, and democracy
§ 1 Strengths and weaknesses of environmental participation under the Aarhus Convention: what lies beyond rhetorical proceduralisation? (Margherita Poto)
§ 2 Participatory Democracy and the global approach in environmental legislation (Cristina Fraenkel-Haeberle)
§ 3 The Aarhus Convention between protection of human rights and protection of the environment (Claudia Sartoretti)
§ 4 Participatory rights and the notion of interest in environmental decision-making: a theoretical sketch and some international legal considerations (Paolo Turrini)
§ 5 The public interest to environmental protection and indigenous peoples’ rights: procedural rights to participation and substantive guarantees (Federica Cittadino)
Part II: Participation in administrative decision-making: prerequisites and principles in national and supranational law
§ 6 Ecological Interest as a leading rationale for participation (Giulia Parola)
§ 7 The implementation of the Aarhus Convention in Italy: a strong “vision” and a weak “voice” (Viviana Molaschi)
§ 8 Participation of environmental associations in the context of nature conservation law in Germany (Julian Zwicker)
§ 9 Participation under REACH – stakeholder interests and implementation of EU secondary law (Nicola Below)
Part III: Participation through access to justice – conditions and concepts of judiciary participation
§ 10 Access to justice a the main challenge for implementing the Aarhus Convention (Eva Lohse)
§ 11 Implementation and the Separation of Powers (Angela Schwerdtfeger)
§ 12 The German criteria for access to justice under the scrutiny of the Aarhus Convention Compliance Committee and of the ECJ: is there room for similar proceedings against Italy? (Elena Fasoli)
§ 13 The effect of the Aarhus Convention´s Right to Access to the Courts in Germany (Bilun Müller)
§ 14 Attorneys for the environment – implementation of Art. 9 (3) Aarhus Convention? (Ulrike Giera)
Part IV: An example for best practises in environmental participation
§ 15 Environmental Management: the model of the environmentally equipped industrial area (Riccardo Beltramo/Stefano Duglio/Maria Beatrice Pairotti)
Introductory remarks on the idea and the purpose of a German-Italian Dialogue on Participation in Environmental Decision-Making (Poto/Lohse)
Earth Democracy is a shift from anthropocentrism to ecocentrism. And since we all depend on the Earth, Earth Democracy translates into human rights to food and water, to freedom
from hunger and thirst. (Vandana Shiva, Earth Democracy)
I. Scientific background of the project
Our project on Participatory rights in the environmental decision making process and the implementation of the Aarhus Convention aimed to provide a comparative overview of the implementation of the Aarhus Convention (AC) on participatory rights in environmental decision making processes. The core idea was to explore the legal cultures of various EU member states, where the AC principles have been implemented in national law with a special focus on the participatory rights in German and Italian environmental law.
The AC can be seen as the litmus test of economic and political revolutions, having triggered shifts in mentality in the administrative decision-making process in environmental law. These changes have a twofold impact on the legal systems at stake: firstly, they certainly contributed to the expansion of public participation in all phases of the decision-making process (mainly in Italy); secondly, they run the risk of restricting the procedural autonomy of the Member States (mainly in Germany) on the basis of an excessively interpreted principle of effectiveness (art. 4 (3) Treaty establishing the European Union).
The project has scrutinised a few of these interrelations, in line with the following structure: 1) first, a comparative study on the differences and similarities in the German and Italian administrative procedures and court proceedings (especially regarding the access to courts, subjective/individual rights, third parties in administrative proceedings);
2) second, a scrutiny of the connection between the participatory achievements and the awareness of a common ecological interest;
3) third, the intricacies of participatory democracy and multi-level entities such as an international Convention, a supra-national organisation as a signatory and its Member States as co-signatories.
As regards participatory rights, the analysis on the compliance of the Italian and the German legal systems has followed a matrix of questions.
- Are there differences in the application of the rules on public participation applicable respectively to specific activities (art. 6 AC), to plans, programs and policies (art. 7 AC), and to normative instruments (art. 8 AC)?
- Is participation going beyond defence and consultation, and leading up negotiation or co-decision?
- Are participatory rights given to NGOs in the same manner as to individuals (also considering art. 7 AC – “public which may participate” – and art. 9 AC)?
- What is considered a reasonable timeframe for the different phases (art. 6 (3) AC)? - Are the requirements for participation in the AC considered the same as with the
Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA) introduced by European Union (EU) directives or existent in national law? If not, how are differences dealt with?
- In connection with access to justice, what is meant by “due account is taken of the outcome of public participation” (art. 6 (8) AC) and what are considered to be sufficient “reasons and considerations” (art. 6 (9) AC)?
As a starting point for the comparison, the situation 1) pre-, and 2) post-implementation of the AC was considered.
The difficulty in effectively implementing the participatory rights derives from the absence of a clear definition of substantive environmental rights. This Achilles’ heel of the AC has been pointed out by legal research. This lack has been defined as a practical obstacle impinging on its commitment to human rights, as it arguably reduces the scope for public deliberation on the appropriateness of environmental decision-making according to competing social values. It is therefore important to define characteristics or elements of substantive environmental rights. Their established connection to fundamental rights of the human being as endorsed in national and international codifications of human rights should be a starting point, yet, clearly environmental rights have to encompass further elements, such as sustainability and care for future generations but also collective rights and the protection of common goods that can hardly be expressed by individual human rights.
Therefore, the project has scrutinised where and to what extent the AC and EU implementation measures establish the legal protection of such rights and interests, especially by the introduction of participatory rights for the common good. In conclusion, there have been ups and downs in implementation of the AC over time. So far, however, the resulting legislation does not seem to have led to structural changes, which could have a significant impact on environmental policies and, most of all, which could give substance to environmental rights. Placing the Earth as the core object of the investigation, a shift to ecocentrism is needed, where the ‘ecological interest’ has to stand out as a fundamental right of the individuals. Our project, with the debate followed by the present publication, aims to contribute to the knowledge of whether the European Union is on the right way to establish such an approach.
II. Success and outcome of the project
The success of this project lies in the wish that a research group led by young (mostly female) legal researchers can trigger a shift in mentality on environmental participation.
This idea was generously supported by the Deutsche Akademische Austauschdienst (DAAD), that believed in our potential to build up a network of scholars and practitioners willing to explore the environmental consciousness flourished after the AC, and therefore to contribute
to its programme of Deutsch-Italienische Dialoge. And a dialogue it was, indeed. The research group was formed by legal scholars, young in age or in spirit, practitioners, economists, philosophers and a theologian from different countries of the EU.
The importance of a participatory approach was dual, since it found its own dimension both as main objective of the project (environmental participation) and as the methodology applied to reach the objective itself (a German-Italian dialogue open to third interlocutors).
The importance of environmental participation is grounded on some key aspects:
1) the dialoguing parties all agree upon the core idea that deep reflections on the importance to grant a wide environmental participation are of great benefit for the Earth;
2) a serious commitment to constitute a task force of young researchers on environmental protection is urgently needed;
3) all the efforts undertaken toward an effective shift to ecocentrism in the global scenario shall be strengthened and encouraged.
Alongside with our commitment to environmental legal studies, we wish that this project, with a conference and a collection of proceedings, is only the starting point of a long-term cooperation between academic institutions, free thinkers, scholars and third parties.
Our heartfelt gratitude goes to all the people who believed in our idea and decided to be part of the dialogue, as supporters and interlocutors.
Erlangen-Turin, 22 November 2014
Part I: Perspectives on participation – rationales, protected interests, and democracy
§ 1 Strengths and weaknesses of environmental participation under the Aarhus Convention: what lies beyond rhetorical proceduralisation? (Margherita Poto0)
Though the Second Pillar of the Aarhus Convention (AC) marked the first milestone of the participatory rights season, new and more effective inputs seem to be needed in administrative legal systems of the contracting parties, in order to take a step forward in the implementation process: some virtuous cases shed a light on the participatory dynamics, however the recognition of the environmental interest as a fundamental right does not seem to be in the agenda of the AC parties yet.
I. Introductory remarks
Beyond any doubt, the Aarhus Convention can be seen as the litmus test of economic and political revolutions, triggering shifts in mentality as regard as participatory rights in the environmental decision-making process for all the contracting parties. These include public participation in all phases of the decision-making process and the right/duty to participate being seen as a fundamental right of the persons, individuals or associated.
Taking into account the contributions in this section and their different viewpoints on the environmental participation, my comments will be developed according to the following structure:
1) first, a bird’s eye overview of the participatory mechanisms governing the AC in three aspects: in the preparatory work, in the legal provisions (Second Pillar) and in the ruling of the Compliance Committee;
2) second, some remarks as to the European Union (EU) level of compliance; and
3) finally, an analysis of the reasons behind non-compliance. This analysis will comprise of endogenous and exogenous factors which causing resistance from the parties.
II. The AC participatory approach its shifts in mentality: political, diplomatic and legal
1. The political side
It emerges from Cristina Fraenkel-Haeberle’s contribution that the impact of the AC on European democratisation has been massive, considering how it helped to open up doors to the participatory rights0. This has been particularly evident for the former communist countries, where activists and scholars participated in the negotiations and contributed to keep
0 My gratitude goes to all the friends and colleagues who have actively been contributing to the realisation of the project. Moreover, I am deeply grateful to Maria Laura Basile, Edwin, José and Phoebe Ramirez for their support during my research stay in Heidelberg, Summer 2014. Comments and exchange of ideas are welcome at firstname.lastname@example.org.
up the debate over the compliance mechanisms. Svitlana Kravchenko’s role in encouraging the full implementation of the AC is worthy of mention in this regard. As a supporter of the AC, she recalled that “the Convention was developed in part through the efforts of the public, and its primary subject matter is the right of the public to participate in environmental decisions that may affect them”.0
The political upheavals of the Central and Eastern European democratic spring in the late 1980s and early 1990s, had been a driver towards the promotion of public participation in the decision-making process. It has indeed been noted that: “[a]fter the fall of the Berlin Wall in 1989 and the breakup of the Soviet Union in 1991, Western European countries were determined to bring democracy from the West to the East, namely the countries of Central Europe, Eastern Europe, the Caucasus region, and Central Asia. In addition to promoting electoral democracy, they worked to promote the concept of public participation in government decision-making, focusing specifically on environmental decision-making.”0
2. The shift in diplomacy
Another cultural shift that the AC has participated in is a dramatic change in the nature of international negotiations. Besides reflecting political turmoil, the AC contributed to dramatically change the scenario of international negotiations. The choice of involving NGOs in negotiations and not only Parties and Signatories, has been observed as a unique characteristic among environmental conventions and perhaps in international law.0 In the document entitled What is the Aarhus Convention, Kravchenko describes in detail the new revolutionary method adopted to allow for broader participation in the decision-making and drafting of documents. “This was the first time an international convention was prepared with the broad and intensive involvement of environmental organizations. A coalition of such organizations (such as) the European ECO Forum (NGO Coalition), participated in the drafting and in all the negotiating sessions organized by the Economic Commission for Europe of the United Nations (UNECE). The coalition also organized, inside the official Aarhus Conference, a roundtable with Environmental Ministers about the practical importance of the Convention. The roundtable also discussed good and bad practices in countries and presented practical examples on how improvement can be achieved.”0 Since the main objective of the AC was to provide new avenues for participatory democracy in 0 Fraenkel Haeberle , in this volume, who considers the AC as a reply to the functional problems that the representative democracies have met in Europe in the past decades.
0 Kravchenko, at 6. The author recalls that these features were observed by herself, who participated in most of the negotiations on behalf of the NGO Coalition. In order to pave the way towards the democratization of the Central and Eastern Europe, the Regional Environmental Center for Central and Eastern Europe (REC) in Hungary provided support through funding, guidance, and inspiration for a whole generation of local advocates for environmental democracy (public participation in environmental decision-making) through numerous projects, including the publication of a four-volume series of books titled Doors to Democracy: current trends
and practices in public participation in environmental decision making in the newly independent States (S.
Kravchenko, ed., The Regional Environmental Center for Central and Eastern Europe, 1998), available at http://www.rec.org/REC/Publications/PPDoors/NIS/PPDoorsNIS.pdf.
0 Kravchenko, at 6. 0 Kravchenko, at 10.
0What is the Aarhus Convention, UNECE document prepared by S. Kravchenko and edited by M. Taylor, available at http://www.unece.org/fileadmin/DAM/env/pp/Media/citizens_rights_under_Conv_e.pdf, last visited June 2013.
environmental matters, it made sense to apply those principles in the very process being used to create it.
For these reasons, the AC has not only contributed to the shift of mentality in the legal cultures of the former communist countries, but has also facilitated the introduction of new participatory mechanisms in international negotiations.
3. A new legal mindset
The crowning achievement of these participatory negotiations consisted in the recognition of the fundamental right for every person “to live in an environment adequate to his or her health and well-being […and in] the duty, both individually and in association with others, to protect and improve the environment”0.
The right of access to information, the right to participate in decision-making, and the right of access to justice in environmental matters are nothing other than the logical consequence of this recognition. Though the AC approach towards fundamental rights and duties is strictly procedural, this does not preclude an acknowledgement of the revolutionary impact of its provisions on the legal traditions of contracting parties.
Turning more specifically towards content, the second part of the AC, known as the “Second Pillar”, is structured to allow broader participation in environmental decision-making. Public participation covers three domains:
1) participation in the authorisation procedure for certain specific activities, mainly of industrial nature, listed in Annex I to the AC (art. 6 AC);
2) participation in the formulation of environmental plans, programs, environmental policies as well as legislation, binding regulation and standards, that may have a significant effect on the environment (art. 7 and 8 AC);
3) participation in decisions concerning the deliberate release of GMOs into the environment0. Art. 6 AC clearly shows the active role played by the AC in encouraging the adoption of harmonised mechanisms, such as the Environmental Impact Assessment (EIA).
The AC encourages the national legislator to adopt participatory mechanisms and suggests improvements in administrative performances. Peripheral to the participatory approach, but responding to the same logic of contributing to the openness and to the transparency of the public action, the EIA is associated with a particular standard form of process for the assessment of potential environmental impact as part of the decision-making process relating to a particular proposed activity. Though known in many countries in the UNECE region, this does not necessarily mean that a specific regime of EIA has to be established by the parties. It
0 Preamble of the AC. The full text of the Convention is available in the proper language at http://www.unece.org/env/pp/treatytext.html, last visited in June 2013.
0 In line with the Council Decision 2006/957/EC of 18 December 2006 on the conclusion, on behalf of the European Community, of an amendment to the Convention on access to information, public participation in decision making and access to justice in environmental matters [COM(2006) 338 final - Official Journal L 386 of 29.12.2006]. At European level this requirement is already met by certain provisions of Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms and Regulation (EC) No 1829/2003 on genetically modified food and feed.
just means that a kind of review of the environmental impacts of particular activities has to be granted, where decision-making in relation to them takes place. The Implementation Guide of the AC states: “[t]his assessment is typically carried out by authorities at the level most relevant to the proposed activity or by an applicant or proponent of a project under their supervision. For example, local authorities will generally have authority to approve projects with solely local impact, while regional authorities may approve projects with an impact throughout a watershed. Some countries also require separate issuance of more than one permit, each of which may have environmental consequences.”0
The suggested harmonisation of environmental assessment proceedings, though giving enough flexibility to the parties in interpretation and implementation,0 is another example of how deeply the AC has influenced a wide variety of issues related to the national legal systems and cultures, addressing the administrative structure of the parties and requiring a participatory approach.
III. The Aarhus Convention Compliance: internal mechanisms and national outputs 1. The Compliance Committee: a new participatory approach to monitor
The remarkable impact of the AC on the legal structures of the contracting parties has certainly been facilitated by the choice to assign to a Compliance Committee tasks to monitor the effectiveness of the AC implementation.0
The composition of the Compliance Committee mirrors the idea of a “participatory structure.” As for the approval of the AC itself, and consistently with the provisions about participation, the Compliance Committee adopts a completely new approach, thus opening up participatory rights. It is the AC’s objective to encourage “on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention. These arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention.”0
The Compliance Committee is therefore established with participatory features, namely: 1) the ability of NGOs to nominate experts for possible election to the Committee;
2) the requirement that all Committee members be independent experts rather than representatives of state Parties to the Convention; and
0 ECOSOC, ECE, The Aarhus Convention: An Implementation Guide v, U.N. Doc. ECE/CEP/72 (2000) (prepared by S. Stec & S. Casey-Lefkowitz), available at http://www.unece.org/env/pp/acig.pdf, at 87.
0 In the Implementation Guide, this case is quoted as an example of flexibility left to the parties. “In some instances, it is more or less clear that differences in national legislation or in legal systems may have an effect on the scope of a particular provision. An example is the determination of “significant” environmental effect. Under article 6, paragraph 1, Parties are obliged to apply the provisions of article 6 to decisions on proposed activities which may have a significant effect on the environment. For those proposed activities not listed in annex I, Parties must determine whether a proposed activity has a significant effect on the environment in accordance with its national law”. See ECOSOC, ECE, The Aarhus Convention: An Implementation Guide, U.N. Doc. ECE/CEP/72 (2000), cit., pp. 31-32.
0 For the first comments on the Committee see Koester, at 83, and Wates, at 167. On the Compliance Committee, see extensively the contribution of Elena Fasoli, in this volume.
3) the right of any member of the public and any NGO to file a “communication” with the Committee alleging a Party’s noncompliance0.
This innovative mechanism was proposed during the First Meeting of the Parties0 and its completely original approach provoked controversial reactions. It was sharply criticised by the United States0, strongly supported by the European Union0 and finally approved by acclamation.
The Compliance Committee is grounded on the principles of participatory democracy.
In compliance with Decision I/7 of the Meeting of the Parties (2002)0, the Compliance Committee consists of eight independent experts with recognized competence in the field and who serve in their personal capacity and are nominated not only by Parties and Signatories, but also by NGOs promoting environmental protection and falling within the scope of art. 10, (5) AC.0 This new participatory approach, adopted also in the monitoring of AC implementation has produced remarkable results in the functioning of the Compliance Committee, which now has a consolidated collection of cases; the Case Law of the Aarhus Convention Compliance Committee (2004-2011).0
2. The European Union: a good level of compliance due to legal tradition
0 Kravchenko, at 4, who observes that “each feature is either unique or rare in international environmental law. The combination of all three in one compliance mechanism is remarkable”.
0 U.N. Econ. & Soc. Council (ECOSOC), Econ. Comm’n for Eur. (ECE), Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Report of the First Meeting of the Parties Annex 7, U.N. Doc. ECE/MP.PP/2 (Dec. 17, 2002), available at http://www.unece.org/env/documents/2002/pp/ece.mp.pp.2.e.pdf last consulted June 2013.
0 Kravchenko, at 3, who was taking part to that Meeting, recalls that the United States criticized the “variety of unusual procedural roles that may be performed by non-State, non-Party actors, including the nomination of members of the [Compliance] Committee and the ability to trigger certain communication requirements by Parties under these provisions”.
0 Most Western European nations had not ratified the Aarhus Convention by the time of the First Meeting of the Parties, but they participated fully as Signatories. From the West, only three countries were full Parties by the time of the First Meeting (Denmark, France, and Italy), while 18 formerly Communist countries were Parties (Albania, Armenia, Azerbaijan, Belarus, Estonia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Poland, Republic of Moldova, Romania, Tajikistan, The Former Yugoslav Republic of Macedonia,
Turkmenistan, and Ukraine). Another 19 countries from the West (Austria, Belgium, Cyprus, European Community, Finland, Germany, Greece, Iceland, Ireland, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and United Kingdom) were eligible to participate as Signatories, as were an additional four former Communist countries (Bulgaria, Croatia, Czech Republic, Slovenia). See Multilateral Treaties Deposited with the Secretary General, 13. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, http://www.unece.org/env/pp/ctreaty.htm last visited June 2013.
0http://www.unece.org/fileadmin/DAM/env/pp/documents/mop1/ece.mp.pp.2.add.8.e.pdf Annex Art. 1, last visited June 2013.
0 Art. 10, paragraph 5 AC states that: “Any non-governmental organization, qualified in the fields to which this Convention relates, which has informed the Executive Secretary of the Economic Commission for Europe of its wish to be represented at a meeting of the Parties shall be entitled to participate as an observer unless at least one third of the Parties present in the meeting raise objections.”
0This collection attempts to summarise the practice of the Compliance Committee of the Aarhus Convention. In many cases, the Committee had to interpret and apply Convention’s provisions to specific situations brought to its attention by the public and parties, as well as its own rules of procedures. Therefore, substantial case law was developed by the Committee during 2004-2011. Understanding this case law may help policy makers and practitioners apply and use the Convention in a more effective and uniform way promoting common standards for practical enforcement of environmental human rights in UN ECE region.
Focusing on the EU as a party to the AC, it is possible to find another connotation of the AC vis-à-vis the legal culture, (by) tapping into the feature of legal tradition.0
The EU has taken a leading role in environmental protection at international level. This is particularly evident in the AC implementation. International environmental law and more specifically the procedural guarantees the AC introduced, have contributed in re-shaping the EU legal order. This has had two implications: on one hand, the connection between environmental protection and human rights has improved at European level, at least from a procedural perspective. These improvements relate to the above mentioned improved terms of harmonisation of administrative proceedings concerning environmental impact assessments.0 As a consequence, the AC’s specific procedural requirements contributed to increase the number of cases decided by the Court of Justice of the European Union (CJEU) on the Convention. 0
On the other hand, the EU’s participation in the AC (the so-called “Europeanization of the Aarhus Convention”) has limited the procedural autonomy of Member States. Christine Eckes has masterfully described this second implication; “[w]hen concluding a mixed agreement, the Member States are bound to comply with their obligations under international law (here the Aarhus Convention) and to give effect to EU law, including the EU’s international agreements which, pursuant to Article 216 TFEU become ‘an integral part of the legal order of the European Union’ ” This leads to a situation in which the AC entails more far-reaching 0 Scott, 2009, at 897, Scott and Rajamani, 2012, at 469, Zito, at 363, Chiavari, Withana, Pallemaerts, at 45.
0 This has been pointed out also by the AC Compliance Committee, commenting Art. 6 (2) AC. “Most Member States seem to rely on Community law when drafting their national legislation aiming to implement international obligations stemming from a treaty to which the Community is also a Party. Moreover, the provisions of the EIA Directive, including those relating to public participation, are being directly invoked in some legal acts
concerning provision of Community funding, for example in Annex XXI to Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund. Thus in practice they may be applied directly by
European Community institutions when monitoring compliance with the EIA Directive on the occasion of taking decisions concerning Community funding for certain activities”.
0 Eckes, at 1151. The author counts five cases ruled by the Court of Justice of the European Union in the past three years: Case C-182/10, Marie-Noëlle Solvay & Others v. Région wallonne,
http://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=182-10&td=ALL (Feb. 16, 2012); Case C-524/09, Ville de Lyon v. Caisse des dépôts et consignations, 2010 E.C.R. I-14115 [hereinafter Ville de Lyon case]; Case C-266/09, Stichting Natuur en Milieu & Others, 2010 E.C.R. I-13119; Case C-240/09,
Lesoochranárske zoskupenie VLK v. Ministerstvo životného prostredia Slovenskej republiky,
http://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=C-240/09&td=ALL (Mar. 8, 2011. As of 7 September 2012, four more cases are pending before the CJEU: Case C-605/11P, Fin. v. Liga para Protecção da Natureza (LPN), 2012 O.J. (C 58/4); Case C-530/11, Comm’n v. U.K., 2012 O.J. (C 39/7); Case C- 260/11, Reference for a preliminary ruling from Supreme Court of the United Kingdom made on 25 May 2011— Regina, on the application of David Edwards & Another v. Envtl. Agency & Others, 2011 O.J. (C-226/16); Case C- 416/10, Reference for a preliminary ruling from the Slovak Republic lodged on 23 August 2010—Jozef Križan & Others v. Slovenská inšpekcia životného prostredia, 2010 O.J. (C 301/11). The General Court has decided two cases concerning the Aarhus Convention: Case T-396/09, Vereniging Milieudefensie und Stichting Stop Luchtverontreiniging Utrecht v. Comm’n, http://curia.europa.eu/juris/liste.jsf?
language=en&jur=C,T,F&num=T-396/09&td=ALL (June 14, 2012); Case T- 338/08, Stichting Natuur en Milieu and Pesticide Action Network Eur. v. Comm’n, http://curia.europa.eu/juris/liste.jsf?
language=en&jur=C,T,F&num=T-338/08&td=ALL (June 14, 2012). It also mentions the Aarhus Convention in two previous cases: Case T-264/04, WWF Eur. Policy Programme v. Council, 2007 E.C.R. II-00911 [hereinafter WWF case]; Case T-37/04, Região autónoma dos Açores v. Council, 2008 E.C.R. II-00103.
obligations for Member States under EU law rather than under international law. This is the case mainly because, under EU law, not only is the international agreement itself binding, but also its interpretation is subject to that of the Court of Justice of the European Union. This is not a peculiar phenomenon of the AC, but it becomes apparent and relevant in the application of the Convention due to its subject matter i.e. procedural rights and its great detail.
The same concept has been affirmed by the AC Compliance Committee. Commenting on art. 6 (2) AC, for instance, the Compliance Committee observes that “when examining compliance by the Party concerned, the Committee must take into account the structural difference between the European Community and other Parties, and the general division of powers between the Community and its Member States in implementing Community directives”0.
3. Actions for better compliance
All in all, the effort towards democratisation and Europeanisation has encountered structural and mental resistance, which has suggested to the European Environmental Bureau that the following recommendations0, which are valid for all of the “half compliant countries”, (apply) no matter what reason is behind the non-compliance. They are as follows:
1) create public participation monitoring committees in all countries and at EU level;
2) invest in awareness-raising for citizens and training in effective use of public participation rights;
3) give priority to training and capacity-building for officials and citizens;
4) establish safeguards to ensure public authorities take substantive account of public comments when making decisions;
5) require information to be released within reasonable time-frames to give the public time enough to become informed and to prepare and participate effectively. Current deadlines barely fulfill these conditions;
6) require more proactive measures to inform the public, e.g. electronically, of opportunities to participate;
7) make notice procedures more citizen-friendly; 8) assert ad hoc groups’ right to participate;
9) courts and administrative authorities should directly apply the AC and Directives where national law conflicts with or does not fully implement them.
IV. Reasons behind the delayed or scarce compliance
Despite the remarkable improvements toward openness of administrative powers, the AC has not marked a turning point as regard as substantial environmental participation. The struggle
0 Andrusevych, et al., at. 40.
0 How far has the EU applied the Aarhus Convention? European Environmental Bureau (EEB), Report
prepared for the European Environmental Bureau (EEB), in
toward a fundamental right to a safe environment has been analysed from different perspectives in this volume. Claudia Sartoretti has asserted that “the Convention prefers to defend the right to a healthy environment in its “procedural” dimension”, rather than protecting it as a distinct and abstract obligation”0. In Paolo Turrini’s contribution, it has been underlined that the process toward a full recognition of the environmental rights as fundamental rights is slow, if not inconceivable in the short run0. Federica Cittadino has also scrutinised the relationship between procedural and substantial rights, drawing the quite comforting conclusion that “participatory requirements are functional to the realisation of substantive rights”0.
Certainly, the problematic areas in implementing the Convention depends on “exogenous factors”, such as the discretion accorded to the parties in interpreting the AC rights, and the consequent challenges to deal with the legal cultures, as well as “endogenous factors”, such as the internal features of the AC itself.
In this second area, the absence of a clear definition of substantive environmental rights is noteworthy. The AC’s Achilles’ heel has been pointed out by the doctrine. M. Mason refers to this lack as “a practical obstacle impinging on its commitment to human rights, as it arguably reduces the scope for public deliberation on the appropriateness of environmental decision-making according to competing social values”0. Similarly, A. Boyle acknowledges that the focus of the Convention is strictly procedural in content, limited to public participation in environmental decision-making, access to justice and information. “The Aarhus Convention is widely ratified in Europe and has had significant influence on the jurisprudence of the European Court of Human Rights [(ECHR)…] The Aarhus Convention is important in the present debate because, unlike the ECHR, it gives particular emphasis to public interest activism by NGOs. But […] while the Convention endorses the right to live in an adequate environment, it ‘stops short, however, of providing the means for citizens directly to invoke this right.’ Moreover, it also stops short of giving the public any right to participate in decision-making on matters of policy. It is of course precisely at this point that governments make decisions about the balancing of social, environmental and economic objectives. The Convention is not completely blind to the point, because Article 7 provides that ‘[t]o the extent appropriate, each Party shall endeavor to provide opportunities for public participation in the preparation of policies relating to the environment.’ As any good lawyer will appreciate, however, this wording has little substance and cannot be portrayed as creating rights for individuals. However, no other human rights treaty goes even this far.” 0
V. A successful model of participation under the AC aegis: the municipality of Capannori
While drafting this comment, I have been tempted to find a prompt solution to the stumbling stone that is the lack of effective participation.
I have searched therefore, for successful models and surprisingly happened to stumble across
0 Sartoretti, at Part. I, § 3. 0 Turrini at Part. I, § 4. 0 Cittadino at Part. I, § 5. 0 Mason, at 26.
a successful one, which does seem to have a strong relationship with the AC implementation. The case of the municipality of Capannori, a smal town in the Tuscan hillside, where every decision is taken with the consensus of the citizens and more surprisingly where every decision seems to be strongly environmentally oriented. The model seems to follow a well established procedure, structured in different aspects:
1) design of public participation processes; 2) analysis of the stakeholder’s interests; 3) clear vision of capacity and resource; and
4) practical solutions offered to environmental challenges.
The effort towards a high level of transparency and participation has resulted in the decision to follow the so-called “Zero Waste Strategy”. In this regard, the official website of the Zero Waste Strategy has been reported that “[…] [l]ocal politicians recognise that the key to their success with door-to-door collection schemes and other zero waste measures, was the early and active consultation of residents. Meetings were held in public places to gather input and ideas and involve the local population in the Zero Waste Strategy. Printed information was sent to every address. A few weeks before door-to-door collection was introduced in a given area, volunteers distributed free waste separation kits to all homes, including the various bins and bags required and further printed information. Volunteers were trained to answer residents’ questions about the new scheme, all of which meant that participation was smooth, immediate and effective”0.
Capannori has been awarded as the Zero Waste Network’s Flagship Municipality for its proactive and participatory approach, inspiring other communities to aim higher than simply fulfilling recycling targets. Thanks to the long range vision of its leaders, problems have turned into opportunities, so that the transparent engagement with the population has transformed the Municipality’s achievements into a commonly shared goal. 0
VI. Conclusion and way forward
In conclusion, there have been many ups and downs in the AC implementation from inception. So far, however, the resulting legislation has not led to any real structural change which could significantly impact on environmental policies and most of all which could give substance to environmental rights.
Certainly, the actions mentioned in paragraph III.3., as well as the example of the flagship initiative of Capannori can create a solid basis to the furtherance of the implementation process, at least at European level, if one also considers their transversal nature in relation to the different legal backgrounds of the parties. The effective shift however, is certainly more structural in nature and has to deal with a new Copernican revolution, where the Earth has to be the centre of the system and where the ecological interest has to stand out as a fundamental right of the individuals. There is no shortcut to this process. Of most importance, is needed to
0 http://www.zerowasteeurope.eu/2013/09/the-story-of-capannori-a-zero-waste-champion/, last visited in August 2014.
come to the common consensus that “sustainable development, democracy and peace are indivisible”0 and shall be pursued with a unified approach.
List of References
Andrusevych, Andriy, Alge, Thomas, Konrad, Clemens(eds.), A (2004-2011), 2nd Edition
(RACSE, Lviv 2011,
http://www.unece.org/fileadmin/DAM/env/pp/Media/Publications/ACCC_Jurisprudence_Eco forum_2011.pdf, available at http://www.unece.org/index.php?id=31320, last visited in June 2013
Boyle, Alan, Human Rights and the Environment: A Reassessment, 18 Fordham Environmental Law Review, 2007, at 471 ff.
Chiavari, Joana, Withana, Sirini, Pallemaerts, Marc, The Role of the EU in Attempting to ‘Green’ the ICAO, ECOLOGICINSTITUTE, Epigov. Paper n. 35, 2008
Cittadino, Federica, The public interest to environmental protection and indigenous peoples’ rights: procedural rights to participation and substantive guarantees, in this volume, Part. I § 5 Eckes, Christina, Environmental Policy “Outside-In”: How the EU’s Engagement with International Environmental Law Curtails National Autonomy, in German Law Journal, Special Issue, vol. 13 n. 11, 2012
Fasoli, Elena, The German criteria for access to justice under the scrutiny of the Aarhus Convention Compliance Committee and of the ECJ: is there room for similar proceedings against Italy?, in this volume, at Part. III, § 12
Fraenkel Haeberle Cristina, Participatory Democracy and the global approach in environmental legislation, in this volume, at Part. I, § 2
Koester, Veit, The Compliance Committee of the Aarhus Convention, An overview of Procedures and Jurisprudence, Environmental Policy and Law, 37, 2-3, 2007, at 83 ff.
Kravchenko, Svitlana, The Aarhus Convention and Innovations in Compliance with Multilateral Environmental Agreements, Colo.J. Int. Env. Law and Policy, Vol. 18-1, 2007, at 3 ff.
Maathai Wangari, An Unbreakable Link: Peace, Environment, and Democracy, in Harvard International Review, Vol. 29 N. 4, January 2008, at 27 ff.
Mason, Michael, Information disclosure and environmental rights: the Aarhus Convention, in Global Environmental Politics, 10, 3, 2010, at 26 ff.
Sartoretti, Claudia, The Aarhus Convention between protection of human rights and protection of the environment, in this volume, Part. I, § 3
Scott, Joanne, From Brussels with Love: The Transatlantic Travels of European Law and the Chemistry of Regulatory Attraction, 57 Am. J. Comp. Law, 2009, at 897 ff.
Scott, Joanne, Rajamani, Lavanya, EU Climate Change Unilateralism, 23 Eur. J. Int’l L., 2012, at 469 ff.
Stec, Stephen and Casey-Lefkowitz, Susan, ECOSOC, ECE, The Aarhus Convention: An Implementation Guide, U.N., 2000, at 12 ff.
Taylor, Mary (ed. by) What is the Aarhus Convention, UNECE document prepared by S.
Kravchenko and edited by M. Taylor, available at
http://www.unece.org/fileadmin/DAM/env/pp/Media/citizens_rights_under_Conv_e.pdf, last visited in June 2014
Turrini, Paolo, Participatory rights and the notion of interest in environmental decision-making: a theoretical sketch and some International legal considerations, in this volume, Part. I, § 4
Wates, Jeremy, NGOs and the Aarhus Convention, in Treves Tullio, Frigessi di Rattalma, Marco, Tanzi, Attila, Fodella, Alessandro, Pitea, Cesare, Ragni, Chiara (eds.), Civil society International Court and Compliance bodies, 2005, at 167 ff.
Zito, Anthony, The European Union as an Environmental Leader in a Global Environment, 2 Globalizations, 2005, at. 363 ff.
§ 2 Participatory Democracy and the global approach in environmental legislation (Cristina Fraenkel-Haeberle)
Il tema della democrazia partecipativa negli Stati multilivello pone al centro dell’attenzione l’esigenza di stabilire come i sistemi nazionali possano essere adeguati ai processi d’integrazione in atto, sia a livello subnazionale, sia sovranazionale, allo scopo di sperimentare nuove forme democratiche. Quest’evoluzione fa emergere la necessità, non solo di riforme istituzionali e procedurali, ma anche di un approccio innovativo, da attuarsi mediante un ripensamento del sistema democratico attraverso forme “alternative” di legittimazione politica. In considerazione della dimensione globale dei problemi, che male si attaglia alla configurazione prevalentemente nazionale della democrazia rappresentativa, prende in tal modo sempre più piede un modello di democrazia partecipativa esercitato in modo settoriale e con un alto grado di specializzazione. Il diritto ambientale, e in particolare la convenzione di Aarhus, promuovendo un approccio bottom-up, incentrato su un’ampia informazione, partecipazione e tutela giurisdizionale dei cittadini interessati, comporta però anche necessariamente una forte valorizzazione della dimensione locale.
Il contributo analizza le forme in cui si declina la democrazia partecipativa, illustrando il suo carattere “deliberativo” e “associativo”, per poi soffermarsi su un approccio trasversale nel diritto ambientale. Oltre all’ottica transfrontaliera, viene posta in risalto la necessità di una prospettiva temporale di ampio respiro, motivo per cui, tra l’altro, in Germania è stata introdotta una modifica costituzionale finalizzata alla tutela delle risorse naturali con lo sguardo rivolto alle future generazioni. Tale prospettiva mal si attaglia ai tempi brevi di un mandato politico nella democrazia rappresentativa, ove la proiezione temporale è notoriamente circoscritta all’appuntamento elettorale successivo.
Nel diritto ambientale vengono generalmente in rilievo “beni comuni”, come ad esempio le risorse idriche, l’atmosfera e il clima, il cui godimento deve essere per sua natura collettivo e il cui controllo democratico si pone con pieno diritto nell’interesse pubblico. Il contributo si chiude con l’analisi di un esempio di circolazione orizzontale dei modelli sulla spinta uniformatrice del diritto internazionale ed europeo, che coniuga il concetto di partecipazione con le garanzie accordate dalla Convenzione di Aarhus.
I. Introductory remarks
The theme of participatory democracy in multi-level states with a federal (e.g. Germany) or regional (e.g. Italy) character is at present the object of wide-ranging and large scale debate. At the centre of attention lies the need to establish how democratic systems can be brought into line with the changed institutional conditions, under which modern states find themselves operating as well as with the related processes of integration, both at a sub-national and a super-national level, in order to try out new democratic forms. In fact, there is an ever increasing awareness of the mounting intolerance of citizens towards the traditional models of
representative democracy. This finds its expression in low turnouts at the voting polls and also in the dissatisfaction with and low esteem of, the political body. The need therefore emerges, for not only various institutional and procedural reforms, but also for an innovative approach to be put into force through rethinking the democratic system in order to pave the way for “alternative” forms of political legitimation. One should in fact, consider that the changed context in which states find themselves operating, obliges them above all in the area of the environment, to adopt a super-national approach in line with globalization, that overcomes the narrow schemes of the traditional state-centred democracy. Environmental law especially the Aarhus Convention (AC), promotes a bottom-up approach centred on completely available information, participation, and legal protection of citizens, also necessarily involves a major strengthening of the local dimension according to the formula of “glocalization”.
II. Participatory, deliberative and associative democracy
Democracy means that decision making is entrusted to the demos, although it is commonly known that in most democracies the demos rules through its representatives. In this sense the term “democratic participation” can be considered misleading, as on one hand the demos can influence through the election process the way in which representation is exercised, on the other hand it gives up in such way participatory democracy in a strict sense of the word.0 Thus, representative democracy can be seen as a prerequisite for participatory democracy and as the main source of democratic legitimation; conversely democratic participation can be a good complement to the direct and representative forms of democracy.0
Participatory democracy has been defined as one of the latest achievements of the “long journey of democracy”0. This statement acknowledges the current challenge of reorganizing power beyond and within the boundaries of the nation state, a situation that has rightly been compared to the task faced by the American citizens of the late eighteenth century, when they had to create a working democratic government.0 In view of the growing discontent of citizens and their disaffection with politics, and considering the crisis of the traditional intermediary bodies, i.e. political parties and trade unions, the recent decades have witnessed, in fact, the search for the solution to fill this gap of consent and of legitimation. The aim has been to strengthen the relationship between private individuals and institutional subjects, the link between state-community and state-apparatus.
Luigi Bobbio0 is credited with distinguishing between the models of participatory democracy drawn from the experiences of South America and the patterns of deliberative democracy from Anglo-Saxon culture. According to this interpretation, deliberative democracy is considered a theoretical substrate on the basis of which have developed concrete forms of participatory democracy, which thus takes on a more applicative character.0 In conclusion,
0 See more extensively on this point: Gamper. 0 Gamper.
0 Bifulco, p. 65; Fraenkel-Haeberle, pp. 507-522 for the definition of models of participatory democracy.
0 Benz, p. 279.
0 Bifulco, p. 67, who quotes from Bobbio, p. 14.
participatory democracy is considered a practical explication of the deliberative democracy model.
Even as regards geographic location, deliberative democracy is placed in a context different from that of participatory democracy, i.e. mainly in the Anglo-American world. This model has been described as the “normative ideal of democracy”,0 founded on the utmost inclusiveness and on the exchange of information. In order to describe it, the concept of “démocratie technique” has been coined to define the deliberative processes aimed at enhancing not so much the know-how of experts and of professionals as the knowledge and experience of society at large.0 The concept of deliberative democracy is largely based on a process of consultation and negotiation that takes place before the decision-making phase. The deliberative phenomenon is a rational moment aimed at informing and raising awareness on a specific topic. It promotes a culture of dialogue through broad debate on a political level. Deliberative democracy is, therefore, especially a moment of discourse, but does not have the effect of transferring the final decision to other parties, which rather remains with the representatives of representative democracy. Models of participatory democracy are instead mainly oriented towards effectively influencing public decisions following the complex process of mediation of interests.0
Taking another approach, deliberative democracy is described as a species of the genus represented by the participatory democracy model.0 The “deliberation”, i.e. the consultation, is countered with the concept of associative democracy. The aim of the latter category, stemming from a neo-corporative system, is to take due account of the needs of an increasingly pluralist and diversified society. Within this context, the State sustains the organization of especially important interests and of the associations and organizations who are in charge of their safeguarding. From this viewpoint, democracy is intended as the negotiation between the representatives of collective interest, i.e. members of Parliament and Government on the one hand, and representatives of specific social interests on the other. The normative pattern of associative democracy thus determines the institutionalization of a democracy of negotiation and agreement.0 The ultimate goal is the search for a shared solution vis-à-vis the “cheaper” model, intended also in terms of time of the mere aggregation of interest, typical of representative democracy. According to this form of mediation of interest, the decisions are not taken within the majority system, but rather within the debate between different subjects representing various interests, who try in this way to optimize the problem-solving process.
In summary, the following distinction can be made between the deliberative and associative models. Deliberative democracy aims to engage in consultations as many stakeholders as possible. On the contrary, the associative model aims to achieve this within the various stakeholder “arenas” of discussion that become significantly involved in the decision-making
0 Bifulco, p. 67.
0 Herzberg/Cuny, p. 7.
0 Schmidt, p. 237.
0 Donati, p. 156.
process.0 Associations, the involvement of social groups and the activation of networks in civil society are, in fact, considered a significant factor of enrichment capable of reviving the democratic process.0 Both models – the deliberative one and the associative one – are used to promote public discussion of controversial issues, thus favouring legitimation and acceptance of the decisions taken at the political level, which are enriched by the results of these participatory procedures.
III. The temporal and transversal dimension in environmental law – Sustainability in law
Pollution, as is generally known, does not stop at national boundaries, a consideration that has long since led to the search for “global”, or, at least, transnational solutions to environmental problems. Going beyond the cross-frontier dimension, various parties have felt the need for an “Environmental Constitution”, which would pave the way for a long-term temporal perspective. These parties had clearly in mind, that environmental protection especially regarding the climate, requires a long-term approach that goes beyond the narrow time limits of a political office, as it is envisaged by the pattern of representative democracy.
Art. 20a Grundgesetz (GG) (Basic Law) in Germany, introduced in 1994, which safeguards natural resources, has the status of a programmatic norm (Staatszielbestimmung) and is an example of this point. Programmatic norms do not contemplate an enforceable right of private citizens, but nevertheless limit the powers of the state as a basic principle, to act conforming to it by legislative, executive and judicial authorities. The norm assigns the task of “safeguarding natural resources including assuming responsibility towards future generations and animals within the framework of the constitutional order” to all state authorities (Federation and Länder). Thus, emerges a multipolar concept of safeguarding concerning the State, which imposes on those public authorities called on the exercise of their function of protection, to achieve the correct equilibrium between interests following the principle of proportionality.0
Unlike the Charte de l’environment (2005), which is an integral part of the French Constitution, the German Basic Law, in the disposition on environmental protection mentioned above, adopted a unilateral interpretation of the concept of sustainability that is focused solely on environmental protection without including in the bounds of the law, the dimension of economic development, and social progress. The Brundtland Report Our Common Future (World Commission on Environment and Development (WCED), 1987), along with the Rio Declaration 1992, contains the concept of sustainability described in a wider perspective. In this regard, according to the Brundtland Report; “sustainable development is development that meets the needs of present generations without compromising the ability of future generations to meet their own needs”. This definition interprets sustainability following a transversal logic standing on three pillars: an ecological, economic and a social one, which can now be held to represent the guideline in the debate on (intergenerational) justice on the environmental question. Also, the efforts of the EU to 0 Sommermann, p. 206 et seq.
0 Ruffert, p. 345.
establish a principle of sustainability within its treaties can be considered at the core of EU environmental law.
A draft law has been presented to the German Bundestag in 2006, which sought to insert the concept of “justice from one generation to the next” in the Basic Law. It aimed thereby at ensuring an equitable distribution of resources regarding future generations. Going beyond the previously mentioned principle of environmental sustainability, which is already foreseen by the Basic Law, this proposal sought to extend the promise made to future generations to questions dealing with economic (especially financial) policy so as to afford the legislator sufficient room to manoeuvre itself, rather than letting future generations be crushed by an overwhelming public debt and an underfinanced social and pension system.0
Still following from the formula neminem laedere in its temporal dimension, the German doctrine also began the transposition of the principle of proportionality in an environmental sense.0 A new formula was sought to be used in weighing up environmental interests with the logic of reasonableness, by following on from the well-known concept of “social” proportionality (taken from Prussian police law and aimed at adopting the least intrusive measure to achieve the desired goal), which establishes the grading of the intensity of intervention by public authority in the individual sphere according to the criteria of necessity, suitability and appropriateness.
It should also be taken into account that nature has neither a legal status nor the ability to act alone and so cannot be attributed subjective rights compared with those of humans. Therefore, the proposal was made to insert a “contrat naturel” between humanity and nature in the “contrat social” between individual and society.0 Proportionality, in the ecological sense was interpreted in this perspective as the equilibrium between financial costs and ecological advantages. Thus it was envisaged as extending a principle previously used for state intervention limiting citizens’ rights, to human behaviour that impacts on the world of nature. Both cases entail a limitation on authority of the State, in the first case regarding society, and in the second case to society regarding nature.
IV. The democratization of environmental law
Environmental law generally highlights “common goods”0, for example water resources, the atmosphere and climate, the use of which, seeing as they are global ecosystems, must be by their very nature collective. Democratic control emerges as a full right in the public interest. The democratic deficit regarding “equitable utilisation of common goods”, often sacrificed to national economic interests, has been stigmatized by many.0 In this context, environmental democracy can be identified with the concept of equality that is with seeking solutions, which permit the more depressed regions of the world to gain access with equal rights to the enjoyment of common goods. Environmental law is increasingly characterised by 0 See for further developments: Kahl, p. 2 et seq.
0 As in: Winter, p. 387 et seq. 0 Winter, p. 387.
international treaties and agreements. However, since a predominant role in the international community is played by the executive power, and not by the parliamentary representation of states, we find ourselves facing a democratic deficit which also extends to the multi-level system of the European Union. Political decisions in this supra-national community are laid down by national administrations and, despite the strengthening of the role of the European Parliament under the Treaty of Lisbon, only the national governments can make their voice heard in the Council of Ministers – though they are, nevertheless, responsible before their national parliaments. The focus on the Member States and their governments still remains in the norms of the Treaty on the Functioning of the European Union (TFEU), which disciplines the objectives of environmental policy and the related measures for protection. In particular, in the fundamental sector of water resources, safety guarantees of the water supply are attributed under art. 192 (2) lit. c TFEU to the special legislative procedure which envisages only the consultation of the European Parliament, but not its participation in the legislative procedure with decision making powers.0
Over recent decades, the protection of natural resources has become a fundamental task in international law. Following the publication by the Club of Rome of “The Limits to Growth” in 1972, which highlighted the exponential growth of the world population with ill-omened consequences for the equilibrium of the planet, the ecological question in all its critical status entered the limelight of general attention.0 The previously mentioned Brundtland Report Our Common Future, the Rio declaration on the environment and development as well as the recent United Nations Environment Programme (UNEP) report Towards a Green Economy0, have also focused attention on the difficult coexistence of economic growth and environmental requirements, and on the fact that economic rules seldom aim to foster citizen participation.
An increasingly preeminent role for NGOs (such as Greenpeace and the WWF) have emerged in environmental policies to compensate for the democratic deficit in decision making over which individual citizens can have no influence. These NGOs, according to the model of associative democracy, have by now become spokespeople for a global public opinion, by obtaining official recognition at the Rio Summit in 1992 (Resolution 44/228).0 Considering that the global dimension of the problems fits in badly with the prevalently national configuration of representative democracy, a model of participatory democracy exercised in a sectorial way with a high level of specialization is constantly gaining ground.
Besides, this concept of participation has been incorporated in numerous international agreements, among which the AC of 25.06.1998 stands out.0 The drawing-up of the Convention saw the participation of environmental groups in the particular rules on the right to access to information, of citizens’ participation in decision-making, and of access to legal
0 Lakowski, p. 174.
0 Krüger, p. 427.
0 http://www.unep.org/greeneconomy/greeneconomyreport/tabid/29846/default.aspx (05.07.2014).
0 Lakowski, p. 173.
0 Convention on access to information, public participation in decision making and access to justice in environmental matters, available online at: www.unece.org/fileadmin/DAM/env/pp/documents/cep43ital.pdf (05.07.2014).
protection, all with the aim of promoting a re-examination of decisions taken on the environment. The Convention is based on a new concept of international law aimed at matching international and national environmental law with basic individual freedoms as well as the associations called on to represent officially the interests of civil society.0
The AC also presents a novelty constituted by its transposition by European directives 4/20030 (concerning information on environmental issues) and 35/20030 (concerning participation in the environmental area), something to which the NGOs have also made an active contribution. As regards legal protection, which is now accessible to environmental associations, who represent, according to the pattern of associative democracy, public interests and not individual rights, a new term was coined in German law: altruistische Verbandsklage0, meaning the altruistic group action of (environmental) associations, legitimized to take legal action by a special national provision adopted in accordance with European law. Also, according to the jurisprudence handed down by the Court of Justice of the European Union (CJEU)0, these associations are entitled to defend before the law interests protected by previously mentioned EU norms, even in absence of the violation of an individual right.0 This particular juridical status contrasts with the German concept of Schutznormakzessorietät (accessory to the protection norm), which presupposes that there always has to be an individual violation as a requisite for providing grounds to proceed upon. In the Trianel case, the CJEU has, in fact, held that European Union law was broken in not recognizing that an NGO could “rely before the courts, in an action contesting a decision authorising projects … on the infringement of a rule flowing from the environment law of the European Union and intended to protect the environment, on the ground that that rule protects only the interests of the general public and not the interests of individuals”0. The Court thereby wished to stress collective rights in environmental protection, extending the rights of legally recognized associations beyond the confines of national legislation, and letting these rights be enforceable in judgements.0
V. An example of the horizontal circulation of models
In consideration of the comparative approach that has inspired this research, I would now like to mention an example of the horizontal circulation of models, following the thrust towards
0 Lakowski, p. 173.
0 Directive 2003/4/CE of the European Parliament and the Council on 28 January 2003 on public access to environmental information which abrogates directive 90/313/CEE of the Council, G.U.C.E. 14.02.2003, no. L/41.
0 Directive 2003/35/CE of the European parliament and the Council on 26 May 2003 which envisages public participation in drawing up certain plans and programmes on environmental matters and modifies the Council directive 85/337/CEE and 91/61/CE regarding public participation and access to justice, G.U.C.E. 25.06.2003, no. L/156.
0 Umwelt-Rechtsbehelfsgesetz of the 08.04.2013 (BGBl. I, p. 753), as modified by art. 2 (52) of the law of 07.08.2013 (BGBl. I, p. 3154), § 2.
0 ECJ, Case C-115/09 (Trianel), ECR , I-3673; ECJ, Case C-72/12 (Altrip), in: NVwZ 2014, p. 49 et seq.; 393 et seq. (wohin gehört diese Seitenangabe?).
0 Sec. 42 (2) VwGO (Verwaltungsgerichtsordnung – Code of Administrative Court Procedure), BGBl. I p. 686, lastly modified by the law of 08.07.2014 (BGBl. I p. 890).
0 ECJ, Case C-115/09 (Trianel), ECR , I-3673.