CYIL vol. 11 (2020)

CYIL 11 (2020) METHODS OF APPLICATION OF THE AARHUS CONVENTION IN THE CASE-LAW… 1. Characteristics of the Aarhus Convention and its Position within the EU Legal Order The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) was adopted on 25 June 1998 and entered into force on 30 October 2001. It has been described by the Secretary-General of the United Nations Ban Ki-Moon as ‘the most ambitious venture in the field of environmental democracy under the auspices of the United Nations’ and ‘the only international legally binding instrument giving the public broad and concrete rights of participation in decision-making and access to information and justice regarding the environment’. 1 It follows from Article 1 of that convention that, in order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party must guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of that convention. As suggested by its title, the Aarhus Convention is structured around three pillars, which are: (i) access to environmental information; (ii) public participation in environmental decision-making, and (iii) access to justice in environmental matters. As for the first pillar, pursuant to Art. 4(1) and (2), each Party must ensure that public authorities, in response to a request for environmental information, make, subject to certain conditions laid down in that article, such information available to the public without an interest having to be stated and, in principle, in the form requested and as soon as possible, in principle within one month after the request has been submitted. Paragraphs 3 and 4 of that article contain a list of reasons for refusing a request for environmental information, which includes, for example, a situation where the request is manifestly unreasonable or formulated in too general a manner or a situation where the disclosure would adversely affect the confidentiality of the proceedings of public authorities, international relations, national defence or public security. Article 5 provides, in the context of access to environmental information, for collection and dissemination of such information. In particular, each Party must ensure that public authorities possess and update environmental information which is relevant to their functions and that the way in which such authorities make environmental information available to the public is transparent and that environmental information is effectively accessible (Art. 5(1)(a) and (2)). The second pillar covers public participation in decisions on specific activities, public participation concerning plans, programmes and policies relating to the environment and public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments (Arts. 6-8). In particular, pursuant to Art. 6(2), the public concerned must be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of the facts listed in that provision. Moreover, each Party must make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public;

1 See his foreword to the Implementation Guide to the Aarhus Convention (Second edition, 2014), p. 3 (https:// www.unece.org/fileadmin/DAM/env/pp/Publications/Aarhus_Implementation_Guide_interactive_eng.pdf).

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