Implementation of Aarhus Convention in the European Union
The European Community law regulates public participation on several levels:
- regulates requirements for transposition of the regulation for the member states (Public Participation Directive, EIA, SEA, IPPC, Water Framework Directive, GMO Directive, Directive on environmental liability with regard to the prevention and remedying of environmental damage) ,
- also stipulates duties for bodies and institutions of the European Community.
Adoption of the Aarhus Convention by the European Community
The Aarhus Convention was signed by the European Community along with fifteen member states on 25th June 1998 and approved on 17th February 2005.
In order to adopt the Aarhus Convention, two conditions had to be fulfilled. Firstly, the European Community must have the authority to adopt the Convention and the Convention must allow adoption by the European Community. Both the requirements must be fulfilled without exceptions.
International Treaty signed by the European Community becomes _part of the community law_ and is therefore binding for the European Community (and it applies also to the authorities and their administrative acts), as well as for all the member states. From the point of view of the other Party, it is a typical international treaty, therefore community and international law must be applied to it. This concerns so called external treaties.
Duties of the bodies and institutions of the European Community
In June 2007, _new regulation_ of the European Parliament and Council No. 1367/2006 on application of the Aarhus Convention to Community institutions and bodies came into effect.
The aim of the regulation is _ to apply provisions of the Aarhus Convention also to bodies and institutions of the European Community_. Generally, the regulation applies to any public body, institution, authority or agency established by the Treaty establishing the European Community or based on it and requires the bodies and institutions of the European Community to secure public participation in the preparation of "plans and programs relating to the environment” by informing the public in time, providing it the opportunity to participate in time and effectively and to express its opposition, which must be properly taken into account. Thus, the regulation regulates the public opportunity (i.e. for everybody) _to file opposition against plans and programs of the European Community_ relating to the environment.
What are plans and programs pursuant to the regulation?
- Firstly, plan or program must undergo preparation and adoption by a body or subject of the European Community.
- Second criterion is the legal ground for creation of the plan or program. The plan or program must be directly required by a legal or administrative regulation.
- The last part of the definition is their relation to the environment derived from the aims of the European Community policy.
- Thus, also general action plans are expressly included in the definition of plans and programs. On the other hand, financial and budget plans, internal activity programs of the body or subject of the European Community or emergency plans and programs meant exclusively for civil protection are excluded.
A statutory term of at least _eight weeks_ is established for filing the opposition. While organizing meeting or public hearing, the term for informing the public is at least four weeks. The regulation also allows the public to file "request for internal examination” of the decision of the EU body – by the body itself. The term for filing the request is six weeks since publication of the decision and the body must respond within twelve weeks in writing.
Requirements of transposition by member states
1. The right for public access to information Obligations resulting from the first pillar of the Aarhus Convention must be transposed by the member states pursuant to the _Directive No. 2003/4/EC on Public Access to Environmental Information_ stipulating limitations for the member states legislation. Issuing national legal regulations, individual member states shall approximate to the direction.
2. The right for public participation in the proceedings
By the complete title, this concerns _Directive 2003/35/EC of the European Parliament and of the Council of 26th May 2003 providing for public participation in respect of drawing up certain plans and programs relating to the environment_ and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EEC.
The Directive regulates three independent areas having in common the concept of public participation. First area is stipulation of rules for public participation in respect of drawing up plans and programs for the group of directives that have not contained the rules until now. Second and third areas are amendments of IPPC and EIA directives so that they comply with the Aarhus Convention requirements for public participation.
Apart from that, requirement for public participation is a part of many other directives, e.g.: water framework directive, GMO directive and Directive on Environmental Liability.
3. The right for public access to justice
On the EU level, there is still no regulation of the area of access to justice. The European Commission has already prepared a _draft directive on access to justice_ COM (2003) 624, however, the proposal has just undergone the initial discussion among the member states. The member states have not yet agreed whether the directive stipulating general common framework for regulation of access to justice is actually necessary.