We have updated this note to reflect the General Court (EU) decision in Deza v ECHA  EUECJ T-189/14 (see Chemicals manufacturer unsuccessfully challenges disclosure of commercially sensitive information under REACH regime).
Aarhus Convention: summary and UK implementation
This note summarises the key provisions of the Aarhus Convention (United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters) and how this has been implemented in the UK.
Scope of this note
The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ( www.practicallaw.com/4-106-4409) (Aarhus Convention) consists of three pillars granting rights to the public in respect of:
Access to environmental information.
Participation in the environmental decision-making process.
Access to environmental justice.
Summarises the three pillars of the Aarhus Convention and explains the key definitions.
Sets out how the Aarhus Convention has been implemented by the EU.
Explains the issues with implementation of the Aarhus Convention in the UK, including EU and international compliance proceedings.
There will be a legislative review process following the UK’s decision to leave the EU (Brexit). However, the UK is a signatory of the Aarhus Convention in its own right and so required to comply with its requirements.
Aarhus Convention: the detail
Entry into force and ratification
The Aarhus Convention was adopted on 25 June 1998 and came into force on 30 October 2001. The EU and UK both ratified the Aarhus Convention in February 2005 and became parties in May 2005.
For general information on the Aarhus Convention, see Aarhus Convention: Introduction.
The Aarhus Convention contains three pillars:
First pillar: access to environmental information. This means that everyone has the right to receive environmental information held by public authorities. Applicants are entitled to obtain environmental information within one month, without having to say why they require it. Public authorities must also actively disseminate environmental information in their possession (Articles 4 and 5, Aarhus Convention).
Second pillar: participation in the environmental decision-making process. This requires public authorities to make arrangements to:
enable the public affected and environmental non-governmental organisations (NGOs) to comment on proposals for specific activities listed in Annex 1 to the Aarhus Convention (which includes industrial activities, waste water treatment plants, road building, pipelines and overhead cables). Public authorities must consider those comments in making their decisions and provide information about their decisions and reasons for making them (Article 6, Aarhus Convention);
enable the public to comment on proposals for plans, programmes and policies affecting the environment. Public authorities must consider those comments in making their decisions (Article 7, Aarhus Convention); and
enable the public to comment on legislation likely to have a significant effect on the environment. The comments from the public should be considered so far as possible in making environmental legislation (Article 8, Aarhus Convention).
Third pillar: access to environmental justice. This gives the public the right to challenge environmental decisions made in breach of the first two pillars or in breach of other environmental legislation. This pillar includes a number of safeguards, including (importantly for the UK) requirements that the judicial procedures to challenge environmental decisions must be "timely and not prohibitively expensive" (Article 9, Aarhus Convention).
There are several terms used in the Aarhus Convention that are particularly important for its scope and effect:
Public authorities. Public authorities are defined to include governmental bodies from all sectors and at all levels (including national, regional and local). The definition also includes bodies that are not governmental bodies, but that:
perform public administrative functions; or
have public responsibilities concerning the environment and are controlled by governmental bodies or bodies performing public administrative functions.
The EU institutions are included. The definition excludes bodies acting in a judicial or legislative capacity.
Environmental information. Environmental information is explained by reference to what it is about. The definition sets out the following three categories, each with non-exhaustive illustrative lists:
the state of elements of the environment, including air, water, soil and biological diversity;
human and non-human factors and activities or measures affecting (or likely to affect) the elements of the environment (examples include substances, energy, noise, environmental policies, plans, programmes and so on). There is no "significance" threshold. This means that any relevant information is included; it is not limited to information about factors, activities and so on with a significant effect on the elements of the environment. This category of environmental information includes economic analyses and assumptions used in environmental decision-making (the economic analyses and assumptions do not need to affect the elements of the environment); and
the state of human health and safety, conditions of human life, cultural sites and built structures, to the extent these are or may be affected by either of the first two categories. The intention was to limit this category to information about the environmental aspects of health and safety, not to open out the Aarhus Convention to the whole of health and safety.
The definition covers environmental information in any form, including electronic. It includes raw and unprocessed information, not just documents.
The public concerned. This covers members of the public affected or likely to be affected by, or with an interest in, the environmental decision-making in question. It includes NGOs that promote environmental protection, provided they meet other national law requirements. The type of interest that a member of the public has can be a factual as well as a legal interest. "The public concerned" was intended to be a broad concept, going beyond the usual legal interpretations of members of the public "having sufficient interest".
(Article 2, Aarhus Convention.)
Implementation and compliance
The Aarhus Convention requires parties to prepare a report on how they have implemented its requirements before each meeting of the parties (Article 10).
The Aarhus Convention Compliance Committee (Compliance Committee) is responsible for reviewing compliance with the Aarhus Convention. The compliance mechanism (where the Compliance Committee reviews whether a particular party to the Aarhus Convention is in compliance) can be triggered in four ways:
A party can make a submission about compliance by another party.
A party can make a submission concerning its own compliance.
The Secretariat can make a referral to the Compliance Committee.
Members of the public can make a complaint (referred to as a "communication") about a party's compliance.
Guidance on the compliance mechanism of the Aarhus Convention, see UNECE: Aarhus Convention: Compliance Committee.
A summary of case law of the Compliance Committee from 2004 to 2012, see Case law of the Aarhus Convention Compliance Committee 2004-2014.
Implementation in the EU
The European Commission has implemented the requirements of the Aarhus Convention primarily through the:
Environmental Information Directive ( www.practicallaw.com/9-508-8446) 2003, which amends provisions on access to environmental information from public authorities (Directive 2003/4/EC of the European Parliament and of the Council on 28 January 2003 on public access to environmental information and repealing Directive 90/313/EEC).
Public Participation Directive ( www.practicallaw.com/6-509-3915) 2003, which provides opportunities for interested parties, including the general public, to get involved in environmental impact assessment (EIA) and integrated pollution prevention and control (IPPC) procedures (Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Directives 85/337/EEC and 96/61/EC). The Public Participation Directive amended the Original EIA Directive ( www.practicallaw.com/8-508-7225) and the IPPC Directive ( www.practicallaw.com/9-507-3671) , to bring them in line with the Aarhus Convention's requirements on public participation and access to justice (Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment and Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control). The IPPC Directive has been superseded by the Industrial Emissions Directive 2010 ( www.practicallaw.com/2-509-2786) (Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control)).
For more information on:
the EIA Directive, see Practice note, Environmental impact assessment (EIA): legislation and guidance ( www.practicallaw.com/3-603-9165) ; and
the IPPC Directive/Industrial Emissions Directive 2010, see Practice note, Environmental Permitting: regulation of industrial installations in England and Wales ( www.practicallaw.com/7-307-4952) .
Regulation (EC) No 1367/2006 applies the three pillars of the Aarhus Convention to EU institutions and to other EU bodies established on the basis of the Treaty on the Functioning of the European Union (TFEU) (Regulation (EC) 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies). For more information, see Europa: Application of the Aarhus Convention to the EU institutions. Under the Aarhus Convention, EU institutions and bodies can be excluded from the scope of the Convention when acting in a judicial or legislative capacity. However, the provisions on access to environmental information under Regulation (EC) No 1367/2006 also apply to Community institutions and bodies acting in a legislative capacity. This is to be consistent with Regulation (EC) No 1049/2001, which provides for broader access to all EU bodies' information (Regulation 1049/2001/EC of the European Parliament and of the Council of 31 May 2001 regarding public access to European Parliament, Council and Commission documents). Regulation (EC) No 1049/2001 may, therefore, also be relied on in seeking environmental information, as in PAN Europe v Commission (Judgment)  EUECJ T-51/15 (see Legal update, European Commission cannot rely on decision-making process exception to refuse access to documents on endocrine-disrupting chemicals (General Court (EU)) ( www.practicallaw.com/w-003-5399) ).
In 2003, the Commission proposed a directive on access to justice in environmental matters, but that did not progress beyond a draft stage (COM (2003) 0624) and was withdrawn in May 2014 (see Legal update, Aarhus Convention: European Commission withdraws proposed Directive on access to justice ( www.practicallaw.com/2-569-4805) ).
In 2013, the Commission published a consultation on access to justice in environmental matters, including whether legislation is required (see Legal update, Aarhus Convention: European Commission consults on possible access to justice Directive ( www.practicallaw.com/5-532-7547) ). The Commission reviewed the EU's compliance with the Aarhus Convention since 2003 and the way that the Court of Justice of the European Union (ECJ) has developed case law on access to justice (see Aarhus in the EU courts below). However, it concluded that this case law approach has led to uncertainty and to a lack of consistency between member states. If there were to be new legislation, it will have to be the submission of a new proposal by the Commission, bearing in mind that the draft 2003 Directive has been withdrawn in 2014.
Also in 2013, the Commission published a Recommendation on collective redress in the Official Journal (Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the member states concerning violations granted under EU law). The Recommendation is intended to improve access to justice in all member states for violations of rights under EU law and specifically mentions, and takes account of, the provisions of the Aarhus Convention (see Legal update, European Commission Recommendation on common principles for collective redress: environmental implications ( www.practicallaw.com/2-535-8031) ).
In August 2016, the Commission adopted a Roadmap towards an interpretative Communication on access to justice at national level related to measures implementing EU environmental law, which is the Commission's preferred policy option to address the challenges of ensuring satisfactory access to justice. It will aim at presenting the existing requirements on access to justice in environmental matters in the EU acquis, as interpreted by the Court of Justice of the EU (CJEU), by drawing the consequences deriving for the member states from the case law of the CJEU, notably the Janecek (Case C-237/07) and Slovak Brown Bear (Case C-240/09) cases (see Legal update, EU environmental law: European Commission adopts Roadmap on access to justice at national level related to measures implementing EU environmental law ( www.practicallaw.com/3-631-2145) ).
For more information on the Commission's implementation of the Aarhus Convention generally, see Commission: The Aarhus Convention.
Aarhus in the EU courts
The ECJ has considered the application of the Aarhus Convention in several cases.
Aarhus Convention does not have direct effect in EU law
In 2011, the ECJ decided that:
Article 9(3) of the Aarhus Convention does not have direct effect in EU law.
National courts should, so far as possible, interpret their domestic procedural rules relating to access to environmental justice in such a way as to enable an environmental protection group to judicially challenge decisions that may have been taken in breach of EU environmental law. In doing so, national courts should take into account the objectives of Article 9(3) and the EU's own objectives of effective judicial protection of rights.
(Lesoochranarske ( www.practicallaw.com/D-011-6518) zoskupenie (Environment and consumers)  EUECJ C-240/09).
Regulation 1367/2006 does not fully implement access to justice pillar
On 2012, in two joined cases brought by NGOs, Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission (Environment)  EUECJ T-338/08 ( www.practicallaw.com/D-011-6545) and Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission (Environment)  EUECJ T-396/09 ( www.practicallaw.com/D-011-6567) , the General Court approved the annulment of the Commission's decisions not to carry out internal reviews of the measures that it had taken relating to pesticides and air quality. The General Court concluded that Article 10(1) of Regulation (EC) No 1367/2006 (which enables NGOs to request an internal review of an administrative act relating to environmental law by an EU Community institution) does not properly implement the access to justice pillar of the Aarhus Convention. This is because it does not provide NGOs with the remedy of challenging the Commission's decisions not to carry out the internal reviews in a court. The General Court considered that this is because Regulation (EC) No 1367/2006 incorrectly limits the "acts" that can be challenged under Article 9(3) of the Aarhus Convention to "administrative acts" that are "measures of individual scope".
However, in 2015, on appeal, the ECJ overruled the General Court's decision in Council v Stichting Natuur en Milieu and Pesticide Action Network Europe (Judgment)  EUECJ C-404/12 ( www.practicallaw.com/D-028-8224) and Council v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht (Judgment)  EUECJ C-401/12 ( www.practicallaw.com/D-028-8525) . The ECJ decided that:
Article 9(3) of the Aarhus Convention could not be relied on in order to assess the legality of Article 10(1) of Regulation (EC) No 1367/2006.
The provisions of an international agreement to which the EU is a party, such as the Aarhus Convention, can only be relied on in support of an action for annulment of an act of secondary EU legislation where both:
the nature and broad logic of the international agreement do not preclude it; and
those provisions appear to be unconditional and sufficiently precise.
Article 9(3) of the Aarhus Convention does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals. Therefore, it cannot be relied on to annul Regulation (EC) No 1367/2006.
EU or national measures are required to extend the rights available to individuals under Article 9(3) of the Aarhus Convention to NGOs in the EU.
In June 2016, the Compliance Committee published draft findings and recommendations concluding that the EU has failed to implement Article 9(3) by failing to fully implement the access to justice requirements. The findings follow a complaint by ClientEarth. In particular, the Compliance Committee concluded that:
Article 10(1) of Regulation (EC) No 1367/2006 will need to be amended (or new legislation made).
There is no new direction in the EU courts' jurisprudence that will ensure compliance.
"Prohibitively expensive" is a partly objective and partly subjective test
The ECJ gave its decision in David Edwards v Environment Agency  EUECJ C-260/11 in 2013 (see Legal update, ECJ clarifies prohibitively expensive test under Aarhus Convention ( www.practicallaw.com/4-525-7229) ). The Supreme Court had referred a question to the ECJ for a preliminary ruling on the third pillar and Article 9 of Aarhus, which requires that the judicial procedures to challenge environmental decisions must not be "prohibitively expensive" . The Supreme Court's question was whether the correct test for "prohibitively expensive" was objective or subjective (see Edwards case below).
The ECJ decided that this was a partly objective, partly subjective test, and set out criteria for the national courts to take into account when assessing costs.
The timing of the ECJ's decision coincided with the codification and capping of protective costs orders (PCOs) into the Civil Procedure Rules (CPR) from 1 April 2013 in England and Wales. If the court in England and Wales does not make a PCO in an environmental judicial review case, it will have to apply the partly objective, partly subjective approach set down by the ECJ when making orders for costs (see What steps is the UK taking to ensure Aarhus compliance?). However, the ECJ also seems to have said that the courts should take the same approach when making a PCO (albeit within the specific caps under the CPR).
The ECJ's decision was applied by the Supreme Court in December 2013 (see Edwards case below)
ClientEarth challenge to Commission's refusal to disclose environmental information
In 2011, Clientearth applied to the General Court (EU) ( www.practicallaw.com/2-107-6007) to require the Commission to disclose information about the potential negative climate impacts arising from the increased use of biofuels and member states' environmental compliance. ClientEarth claimed that the Commission was in breach of its duties under the Aarhus Convention to permit public access to such environmental information. The Commission claimed that disclosure would hinder various investigations it was conducting into member states' compliance with environmental legislation.
ClientEarth relied on several grounds to support its application to the General Court for annulment of the Commission's refusal decision. These included pleas relating to alleged infringements by the Commission of:
Article 4(1), (2) and (4) of the Aarhus Convention, which does not allow any exception to the right of access to documents designed to protect the purpose of investigations other than those of a criminal or disciplinary nature.
The obligation actively to disseminate environmental information stemming from Article 5(3) to (7) of the Aarhus Convention and Article 4(2)(b) of Regulation (EC) No 1367/2006.
ClientEarth also argued that the serious and recurrent infringement by the Commission of Article 4(1) of the Aarhus Convention required the court to impose deterrent measures on the Commission.
In 2013, the General Court delivered its judgment in ClientEarth v European Commission  EUECJ T-111/11, which dismissed all seven grounds of ClientEarth's application (see Legal update, ECJ rejects ClientEarth's challenge to European Commission's refusal to disclose environmental information ( www.practicallaw.com/7-541-7486) ).
In 2015, in ClientEarth v Commission  EUECJ Case C-612/13 ( www.practicallaw.com/D-033-7842) , the ECJ partially overturned the General Court's 2013 ruling that the Commission could withhold documents about breaches of EU environmental law by member states.
The court dismissed two of the main grounds argued by ClientEarth, that the General Court had:
Been wrong in law to say that the provision in Article 4 of the Public Access Regulation 2001 forbidding disclosure where it would undermine the protection of "the purpose of inspections, investigations and audits" was compatible with the Aarhus Convention requirements on access to environmental information (Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 31 May 2001 regarding public access to European Parliament, Council and Commission documents). Documents that had not yet led to a formal notice of infringement did not benefit from an exception in the EU Public Access Regulation 2001.
Misinterpreted the concept of overriding public interest. The court also rejected this argument.
The greater part of the ECJ's judgment related to ClientEarth's first ground, which was that the General Court had misinterpreted the exception to disclosure in Article 4 relating to "inspections, investigations and audits". There were two main aspects to this argument.
ClientEarth claim for access to commercially sensitive information on 365 substances held under REACH chemicals regime
In 2015, in ClientEarth v European Chemicals Agency (ECHA)  EUECJ T-245/11 ( www.practicallaw.com/D-034-3873) , the General Court (EU) gave its decision in a challenge brought by ClientEarth and the International Chemical Secretariat (ChemSec) to a refusal by the European Chemicals Agency (ECHA) to disclose information relating to 365 chemical substances regulated under the EU REACH regime. The case considered in detail the complex interaction between different EU regulations on access to environmental information, the commercial confidentiality exception and overriding public interest in the context of information about substances under the REACH regime.
The court decided that information relating to:
Names of manufacturers and importers of substances should be disclosed.
Precise tonnage or tonnage bands of substances should not be disclosed.
Chemicals manufacturer unsuccessfully challenges disclosure of commercially sensitive information under REACH regime
In January 2017, in Deza v ECHA (Judgment) French Text  EUECJ T-189/14, the General Court (EU) refused the chemical manufacturer's challenge to the ECHA's decision to disclose documents relating to an application for authorisation of DEHP (an endocrine disruptor) under the EU REACH regime. The court held that disclosure of information on the risk characterisation of DEHP (including chemical safety reports, full exposure scenarios and the analysis of alternatives) was essential to allow the public to understand the risks of using DEHP.
ClientEarth claim for access to Commission's documents relating to withdrawal of its 2003 proposal for a Third Pillar Directive
In 2015, in ClientEarth v Commission  EUECJ T-424/14, the General Court (EU) rejected ClientEarth's arguments that it should be given access to the legislative impact assessments relating to the:
Commission's 2014 decision not to legislate on implementing the Aarhus Convention by a Directive.
Revision of the EU legal framework on environmental inspections and surveillance at national and EU level.
The court confirmed that the Commission was justified in refusing to grant access to the documents requested and held that, in the context of the preparation and development of policy proposals (and, where appropriate, proposals for legislative acts), the Commission may rely on grounds of a general nature relating to the need to preserve its "thinking space", room for manoeuvre, independence, the need to preserve the atmosphere of trust during discussions, and the risk of external pressures liable to affect the conduct of the ongoing discussions and negotiations. The court said that the Commission was therefore entitled to presume that the disclosure of those documents would, in principle, seriously undermine its decision-making process for developing a policy proposal, for as long as it had not made a decision in that regard. The Commission did not need to carry out a specific and individual examination of each of the documents connected with each impact assessment in order to make that presumption.
For more information, see Legal update, ClientEarth fails to compel European Commission to disclose information on draft Directive on environmental access to justice (General Court (EU)) ( www.practicallaw.com/7-620-2668) .
Disclosure requests for information relating to emissions to the environment should be widely interpreted
In European Commission v Stichting Greenpeace Nederland and Pesticide Action Network Europe (PAN Europe) C-673/13 ( www.practicallaw.com/D-100-7372) , the ECJ provided important clarification of the type of information that relates to emissions to the environment and that should therefore be disclosed under Regulation (EC) No 1367/2006 (which applies the Aarhus Convention to EU institutions and to other EU bodies).
The court confirmed that the concept of information relating to emissions to the environment should not be interpreted restrictively (see Legal update, Disclosure requests for information relating to emissions to the environment should be widely interpreted (ECJ) ( www.practicallaw.com/w-004-7000) ).
In Bayer CropScience and Stichting De Bijenstichting v College voor de toelating van gewasbeschermingsmiddelen en biociden  EUECJ C-442/14, the ECJ confirmed the approach in the PAN Europe case (see Legal update, Court finds in second case that disclosure requests for information relating to emissions to the environment should be widely interpreted (ECJ) ( www.practicallaw.com/w-004-7599) ).
Complaints against the EU to the Aarhus Convention Compliance Committee
In 2016, the Aarhus Convention Compliance Committee published draft findings that the EU was in violation of the Aarhus Convention for not providing access to the Court of Justice of the EU to members of the public and that neither Regulation (EC) No 1367/2006 t nor the jurisprudence of the ECJ implements or complies with the Convention obligations (see Aarhus Convention Compliance Committee: European Union Decision V/9g).
The Committee is expected to publish its final findings in early 2017.
Implementation in the UK
In 2013, the Department for Environment, Food and Rural Affairs (Defra) launched a consultation on the UK government's draft report on national implementation of the Aarhus Convention (see Legal update, Government consults on draft Aarhus Convention national implementation report ( www.practicallaw.com/2-542-2065) ). Parties to the Aarhus Convention are required to submit national implementation reports every three years and the draft report sets out specific measures and legislation that have implemented the Convention in the UK. The government is due to submit its report in 2014.
Access to environmental information
The first pillar of the Aarhus Convention (on access to environmental information) is implemented in England and Wales by the Environmental Information Regulations 2004 (SI 2004/3391) ( www.practicallaw.com/3-508-2782) , which implement the Environmental Information Directive ( www.practicallaw.com/9-508-8446) .
For more information, see Practice note, Environmental Information Regulations 2004 ( www.practicallaw.com/4-205-5357) .
Public participation in environmental decision-making process
The second pillar of the Aarhus Convention (on public participation in environmental decision-making process) is implemented in the UK through a number of different measures, including those implementing the EIA Directive 2011 ( www.practicallaw.com/1-517-6932) and the Industrial Emissions Directive 2010/75/EU ( www.practicallaw.com/2-509-2786) .
For more information, see Implementation in the EU above.
Access to environmental justice
Infraction proceedings against the UK
Between 2007 and 2010, the Commission issued several warnings to the UK that it has not properly implemented the Aarhus Convention, in respect of the costs of bringing proceedings challenging environmental decisions (see Legal update, European Commission warns UK about access to justice under the Aarhus Convention ( www.practicallaw.com/6-502-1198) ).
The Commission was concerned that, in the UK, the:
Potential financial consequences of losing environmental judicial review challenges prevent NGOs and individuals from bringing cases against public bodies.
Requirement that applicants for interim injunctions give expensive cross-undertakings in damages (deposits that can be used to compensate defendants) before interim injunctions are granted by the courts is a serious impediment to the use of interim injunctions, which can be used for temporarily halting operations that can have a potentially damaging impact on the environment (see Practice note, Undertaking in damages ( www.practicallaw.com/5-204-1987) ).
In 2011, the Commission announced that it was bringing proceedings against the UK over the high cost of challenges to decisions on environmental matters (see Legal update, European Commission takes UK before ECJ for failing to provide access to justice in environmental matters ( www.practicallaw.com/7-505-6535) ).
In 2014, the ECJ held in European Commission v United Kingdom  EUECJ C-530/11 ( www.practicallaw.com/D-024-4972) that the UK's:
Costs regime for environmental judicial review cases did not properly implement the "not prohibitively expensive" requirement of the Aarhus Convention.
System of cross-undertakings in respect of the grant of interim injunctions had to be taken into account when considering whether the "not prohibitively expensive" requirement had been implemented. The possibility that a domestic court might require a cross-undertaking added to the uncertainty about whether environmental judicial review proceedings were prohibitively expensive.
Note that the ECJ was assessing the position in the UK before the 2013 reforms to costs in environmental judicial review proceedings under the Aarhus Convention (see Practice note, Jackson civil litigation reforms: environmental implications ( www.practicallaw.com/4-525-5353) ). It is thought that the judgment protects those reforms, as the ECJ has confirmed that it considers the previous system was inadequate.
For more information on the ECJ's decision, see Legal update, ECJ decides UK is in breach of "not prohibitively expensive" requirement in Aarhus Convention ( www.practicallaw.com/9-560-2553) .
Complaints against the UK to the Aarhus Convention Compliance Committee
In 2010, the Aarhus Compliance Committee considered three sets of compliance communications brought against the UK for failure to properly implement the Aarhus Convention and issued separate findings for each separate communication.
The background and Compliance Committee findings for each communication are set out below.
In 2008, ClientEarth, the Marine Conservation Society and Mr Latimer (together, the communicants), submitted a complaint to the Compliance Committee (ACCC/C/2008/33), claiming the UK was in breach of Article 9 of the Aarhus Convention.
The complaint related to a challenge to a government licence issued to the Port of Tyne, under which the operator can dispose of contaminated port dredge materials at an existing marine disposal site and cap them.
The Compliance Committee found:
The UK failed to ensure that costs in environmental litigation are not prohibitively expensive and neither the UK government nor the UK courts had given "clear legally binding directions to this effect".
There was no "clear minimum time limit" for filing applications for judicial review and no clear date from which time starts to run.
The UK had not established a "clear, transparent and consistent framework" to implement the relevant provisions of Article 9 of the Aarhus Convention.
The UK should review costs in environmental litigation and rules for time limits for applications for judicial review.
Hinton Organics case (Aarhus)
In 2008, Mr Morgan and Mrs Baker (the communicants) submitted a complaint to the Compliance Committee (ACCC/C/2008/23). The complaint related to proceedings in private nuisance brought by the communicants against Hinton Organics (Wessex) Ltd seeking an injunction to prohibit unpleasant odours from its waste composting site. On appeal, the Court of Appeal commented on the application of the Aarhus Convention in civil proceedings (see Hinton Organics case (UK) below).
The Compliance Committee found:
There was no persecution, harassment or penalising in the Environment Agency seeking to recover costs from the communicants.
Although the interim costs order made against the communicants (of about £5,000) was not prohibitively expensive under the Aarhus Convention, nonetheless, it was unfair and inequitable that the communicants were required to pay all of those costs and the operator was not required to make any contribution. Accordingly, the UK was in breach of paragraph 4 of Article 9.
The Compliance Committee also questioned whether the UK had met its obligation under paragraph 2 of Article 3 to ensure that officials and the authorities assisted the public in seeking access to justice in environmental matters.
Belfast City Airport case
In 2008, the Cultra Residents' Association submitted a communication to the Compliance Committee claiming the UK failed to comply with Article 3 of the Aarhus Convention by making the decision to expand Belfast City Airport through a "private" planning agreement (ACCC/C/2008/27). This agreement was only enforceable between the contracting parties and did not allow the public any right of appeal, other than by judicial review. The communicant also claimed a breach of its Article 9 rights when it was ordered to pay the full costs of nearly £40,000, after its application for judicial review was dismissed.
The Compliance Committee found:
It had insufficient evidence to establish a breach of Article 3.
The amount of costs awarded against the communicant made the application for judicial review prohibitively expensive and the manner of allocating the costs was unfair. The UK was therefore in breach of Article 9.
UK's national renewable energy action plan (NREAP)
In 2013, the Compliance Committee published its draft findings relating to communication ACCC/C/2012/68 against the UK and the EU (see Legal update, Aarhus Convention: UK's national renewable energy action plan (NREAP) is not compliant ( www.practicallaw.com/2-541-1811) ). The complaint concerned the requirement that EU member states develop National Renewable Energy Action Plans (NREAPs).
The Compliance Committee concluded that:
The UK's NREAP was not subject to public participation, and consequently, the UK failed to comply with article 7 of the Aarhus Convention requiring such public participation in environmental decision making.
However, there had been sufficient public participation in more detailed relevant Scottish planning plans, programmes and policies, including the Scottish Renewables Action Plan, Scottish Renewables Routemap and Electricity Generation Statement. This public participation was principally through the Strategic Environmental Impact Assessment (SEA) process.
There had also been sufficient public participation under the Aarhus Convention though the usual planning permission consultation process for the specific wind farm and access road.
The Compliance Committee recommended that, in future, the UK should submit plans and programmes similar to the NREAP to public participation as required by Article 7.
Aarhus Convention in the UK courts
The UK courts have considered the application of the Aarhus Convention, in particular in relation to the costs of environmental proceedings, on a number of occasions.
In 2014, the Court of Appeal in Austin v Miller Argent (South Wales) Ltd  EWCA Civ 1012 ( www.practicallaw.com/D-026-8594) set out the following two part test for when a private nuisance claim falls within the Aarhus Convention:
The complaint must have a close link with the particular environmental matters regulated by the Aarhus Convention, even if the claimant does not directly raise them.
If the claim is successful, it must achieve significant public environmental benefits.
However, even if the requirements of the test were met, the court would not be obliged to grant a PCO. Instead, the Convention's requirements for the costs of access to environmental justice not to be prohibitive would be a factor for the court to consider when deciding whether to grant a PCO.
In 2010, the Supreme Court:
Decided that the detailed costs assessment process did not give costs officers the jurisdiction to implement Aarhus Convention requirements that review procedures not be "prohibitively expensive".
Referred the question of whether the correct test for "prohibitively expensive" was objective or subjective to the ECJ for a preliminary ruling.
For more information on the:
Preliminary ruling of the ECJ on the correct test for "prohibitively expensive", see "Prohibitively expensive" is a partly objective and partly subjective test above.
In 2013, the Supreme Court applied the partly objective, partly subjective, test for costs orders set down by the ECJ (see Legal update, Supreme Court applies prohibitively expensive test under Aarhus Convention ( www.practicallaw.com/8-552-0765) ). The ECJ test is to determine whether costs in environmental judicial review claims are "prohibitively expensive", and thus in breach of the requirements of the Aarhus Convention (see "Prohibitively expensive" is a partly objective and partly subjective test above). The Supreme Court:
Made an order for costs in the amount of £25,000 in favour of the respondents jointly.
Provided interpretation and guidance on applying the ECJ test.
In 2010, the Court of Appeal decided that:
The principles of the Corner House case on making protective costs orders (PCOs) in civil litigation should be modified in cases where the EIA Directive ( www.practicallaw.com/8-508-7225) applies, to the extent that this is necessary to ensure compliance with that Directive. For more information on PCOs, see What are protective costs orders?.
It was not consistent with the aims of the EIA Directive to apply a purely subjective test to whether proceedings were prohibitively expensive.
For more information on:
The Corner House rules, see Legal update, Government consults on rules for protective costs orders in environmental judicial review claims: Protective costs orders (PCOs), the Corner House rules and Garner ( www.practicallaw.com/0-509-5427) .
Hinton Organics case (UK)
In 2009, the Court of Appeal commented on the application of the Aarhus Convention in civil proceedings, and public interest cases and domestic law more generally. The court said that, for domestic judges, the principles of the Convention are, at the most, something to be taken into account in resolving ambiguities or exercising their discretion (Morgan and Baker v Hinton Organics (Wessex) Ltd  EWCA Civ 107 ( www.practicallaw.com/D-011-6917) ).
For more information, see:
In 2014, in The Secretary of State for Communities and Local Government v Venn  EWCA Civ 1539 ( www.practicallaw.com/D-028-3353) , the Court of Appeal decided, concerning the grant of a PCO, that:
A statutory claim under section 288 of the Town and Country Planning Act 1990, for the court to quash a planning decision, could be an environmental challenge falling within Article 9(3) of the Aarhus Convention (which requires access to a judicial procedure that is not prohibitively expensive).
However, CPR 45.41 specifically only allows the court to grant a PCO for a judicial review claim that engages Article 9(3), and not for a statutory section 288 application. Consequently, the court at first instance could not exercise its discretion to make a PCO under Corner House principles because that would be an attempt to side-step the limitation (to applications for judicial review) deliberately imposed by secondary legislation. Therefore the appeal succeeded and the PCO could not be granted.
CPR 45.41 is not compliant with the Aarhus Convention insofar as it is only confined to applications for judicial review, and excludes (environmental) statutory appeals and applications (see What steps is the UK taking to ensure Aarhus compliance? below).
Meaning of "environmental"
In R (Dowley) v Secretary of State for Communities And Local Government  EWHC 2618 (Admin), the High Court clarified that a judicial review claim involving intrusive and non-intrusive environmental surveys falls under the broad meaning of "environment" in the Aarhus Convention. The protective costs regime for Aarhus Convention claims under Part 45 of the Civil Procedure Rules therefore applied (see Legal update, Aarhus protective costs regime applies to judicial review involving environmental surveys and court considers section 53 Planning Act rights of entry (High Court) ( www.practicallaw.com/w-004-3279) ).
What steps is the UK taking to comply with the access to environmental justice requirements in the Aarhus Convention?
For more information on the changes the UK has made to the judicial review and statutory challenge regimes to comply with the third pillar (access to environmental justice) of the Aarhus Convention, including the Ministry of Justice's reforms of the Civil Procedure Rules (CPR) and "Aarhus Convention claims" costs rules under CPR 45, see Practice note, Jackson civil litigation reforms: environmental implications: Reforms to environmental judicial review ( www.practicallaw.com/4-525-5353) .