5. International treaties

5.1 The Aarhus Convention 53

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted on 25th June 1998 in the Danish city of Aarhus at the Fourth Ministerial Conference in the ‘Environment for Europe’ process.

Together with its Protocol on Pollutant Release and Transfer Registers, it protects every person’s right to live in an environment adequate to his or her health and well-being. They are the only global legally binding global instruments on environmental democracy that put Principle 10 of the Rio Declaration on Environment and Development in practice.

The objective of the Aarhus Convention is 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.

The Aarhus Convention establishes a number of rights of the public (individuals and their associations) with regard to the environment. The Parties to the Convention are required to make the necessary provisions so that public authorities (at national, regional or local level) will ensure that these rights become effective. The Convention provides for:

  • Access to environmental information: Every individual or association has a right to receive environmental information held by public authorities. This can include information on the state of the environment, on policies or measures taken, or on the state of human health and safety where this can be affected by the state of the environment. Applicants are entitled to obtain this information within one month of the request and without having to say why they require it. In addition, public authorities are obliged to actively disseminate environmental information in their possession.
  • Public participation in environmental decision-making: Arrangements are to be made by public authorities to enable the public affected and environmental NGOs to comment on issues related to the environment, to ensure that these comments are taken into due account in decision-making, and that information is provided on the final decisions and the reasons for them. The public participation provisions of the Convention are divided into three parts:
    • public participation in decisions on specific activities with a potential significant effect on the environment;
    • public participation in the development of plans, programmes and policies relating to the environment, which include sectoral or land-use plans, environmental action plans, and environmental policies at all levels;
    • public participation in the preparation of laws and regulations by public authorities.
  • Access to justice: Members of the public have a right to access to legal review procedures to enforce the Convention’s standards on access to information and public participation, as well as the provisions of domestic environmental law. The provisions on access to justice apply to all matters of environmental law, but a distinction is made in the Convention between three categories of decisions, acts and omissions:
    • refusals and inadequate handling by public authorities of requests for
      environmental information;
    • decisions, acts and omissions by public authorities concerning permits,
      permit procedures and decision-making for specific activities;
    • all other kinds of acts and omissions by private persons and public authorities, which may have contravened national law relating to the environment.
    • Depending on the kind of decision, act or omission in question, the Convention sets different criteria and allows different degrees of flexibility for the Parties in providing access to justice. 54

Compliance mechanism of the Aarhus Convention 55

An interesting example of a non-compliance case is the one brought by ClientEarth against the EU for stopping citizens from taking environmental cases to the European Court of Justice (ACCC/C/2008/32(EU)).

The Aarhus Convention Compliance Committee (ACCC) confirmed that the EU was breaching the access to justice provisions of the Aarhus Convention by preventing individuals and NGOs from bringing cases in EU courts. The Committee also found that the EU’s internal review procedure did not compensate for the lack of court access.

The Committee said that the regulation, which applies the Convention, puts the EU in violation of the Convention and called for the regulation to be amended to ensure that individuals and NGOs go to court to challenge the decisions of EU institutions in environmental matters. It further recommended that the ECJ interprets EU law in a way, which is consistent with the objective of providing adequate and effective judicial remedies for members of the public to challenge acts, which contravene national law relating to the environment.

In consequence, the Council adopted a common a common position on the legislative proposal to amend the Aarhus Regulation 56 . However, the ACCC adopted its advice stating that the legislative proposal, in its current form, is insufficient to ensure the EU’s compliance with the Convention. 57

The Committee’s role is to further implement the Convention. It is not a redress mechanism. The Committee may examine compliance issues and make recommendations if and as appropriate. The Committee adopts findings and if non-compliance is found, may make recommendations either to the Meeting of the Parties, or, with the Party’s agreement, directly to the Party concerned.

Rights of the public

Any member of the public may bring before the Committee a communication concerning a Party’s compliance with the Convention. The communication shall be addressed to the secretariat in writing, using the required format 58 , and should be submitted in electronic form supported by corroborating information.

The communication should be concise: no more than 6,000 words and in exceptionally complex cases up to 12,000 words. The facts and circumstances of the alleged non-compliance should be provided, including all matters of relevance to the assessment and consideration of the communication.

The communication should indicate whether it concerns a specific case of a person’s rights of access to information, public participation or access to justice being violated as a result of the alleged non-compliance of the Party concerned; or whether it relates to a general failure by the Party concerned to implement, or to implement correctly, the provisions of the Convention. For each of the provisions of alleged non-compliance, an explanation of how the Party concerned has failed to comply with that provision, based on the facts of your case is needed. The key supporting documentation will help the Committee to substantiate the allegations.

Although there is no formal requirement to use domestic remedies before submitting communication to the Committee, it is advised to do so. The Committee takes into account at all relevant stages any available domestic remedy, unless the application of the remedy is unreasonably prolonged or obviously does not provide an effective and sufficient means of redress.

Following receipt of a new communication, the Secretariat sends an acknowledgement of receipt.

No later than four weeks before the meeting, the Secretariat informs the communicants and the Party concerned that a communication concerning its compliance will be considered as to its preliminary admissibility at the next meeting, and provides a link to where the communication is posted on the Committee’s website.

The Party concerned and the communicants are informed that the preliminary admissibility will be discussed in open session at the upcoming meeting and, though there is no requirement to do so, a representative of the Party concerned and the communicants may participate either by audio-conference or in person in that session.

No later than two weeks after the meeting, the Secretariat informs the Party concerned and the communicant about the Committee’s decision regarding the preliminary admissibility of the communication.

If the communication was considered to be preliminarily admissible, the Committee proceeds to consider the substance of the file.

The Committee starts the preparation of its draft findings and, where applicable, prepares recommendations as soon as it considers that it has a sufficiently complete picture of the case. Once prepared and agreed by the Committee, the draft findings with any measures or recommendations are transmitted to the Party concerned and the communicant, with an invitation to comment on these within six weeks.

In order to effectively examine the follow-up to decisions of the Meeting of the Parties concerning compliance by individual Parties, the Committee prepares periodic progress reviews, which examine the extent to which the Party concerned has by that date fulfilled the recommendations set out in the decision of the Meeting of the Parties.

5.2 The Espoo Convention 59 and the Kyiv (SEA) Protocol 60

The Espoo (EIA) Convention sets out the obligations of Parties to assess the environmental impact of certain activities at an early stage of planning. It also lays down the general obligation of States to notify and consult each other on all major projects under consideration that are likely to have a significant adverse environmental impact across boundaries (see some examples).

The Convention was adopted in 1991 and entered into force on 10 September 1997 (see which countries are Parties to the Convention). 61

The Espoo Convention, and in particular Article 2 requires Parties to take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impacts of proposed activities and to establish an environmental impact assessment procedure that permits public participation. A transboundary EIA must be carried out before the decision to authorise or undertake these activities is taken.

The key steps in the EIA procedure are:

  • notification and transmission of information;
  • determination of the content and extent of the matters of the EIA information (Scoping);
  • preparation of the EIA information/report by the developer;
  • public participation, dissemination of information and consultation;
  • consultation between concerned Parties;
  • examination of the information gathered and final decision;
  • dissemination of information on the final decision.

According to the Convention, the affected Party (e.g. in the case of HPPs an upstream or downstream country) must express an interest in participating in the EIA procedure of the country of origin, following notification. The Party of origin is obliged to notify affected Parties even if there is only a low likelihood of such impacts. This means that notification is always necessary, unless significant adverse transboundary impacts can be excluded with certainty. 62

If this interest is expressed, the Party of Origin shall provide opportunities for the public of the affected country to participate in the EIA process. These opportunities must be equivalent to those provided to the public in the Party of origin. The concerned Parties (Party of origin and affected Party) must ensure that the public in the areas likely to be affected:

  • is informed of the proposed activity; and
  • is provided with possibilities for making comments on or objections to the proposed activity.

The concerned parties shall be responsible for the transmission of these comments or objections to the competent authority of the party of origin, either directly to this authority or, where appropriate, through the party of origin. Comments or objections of the public of the affected Party (resulting from the consultation) on the proposed activity and on the EIA documentation must be taken into account in the final decision on the proposed activity. 63

The following flowchart presents the steps to be followed in case of a transboundary EIA. 64

FLOW CHART of the transboundary EIA procedure and summary of guidance based upon best practise

The Espoo Convention has been supplemented by a Protocol on Strategic Environmental Assessment (SEA). The so-called Kyiv (SEA) Protocol requires its Parties to evaluate the environmental consequences of their official draft plans and programmes. A strategic environmental assessment (SEA) is undertaken much earlier in the decision-making process than a project environmental impact assessment (EIA), and it is therefore seen as a key tool for sustainable development. The Protocol also provides for extensive public participation in government decision-making in numerous development sectors.

The Protocol was adopted on 21 May 2003 during the Ministerial ‘Environment for Europe’ Conference in Kyiv.

On a practical level, SEA procedures should be initiated together (or with only a slight delay) with the planning or programme development process. This approach provides an opportunity to integrate SEA inputs in the plan or programme during its preparation and thus ensures that the results of the SEA are properly considered when adopting a strategic document, or even before the adoption.

According to the Protocol, an SEA is obligatory for governmental plans and programmes and their modification in thirteen economic sectors (agriculture, forestry, fisheries, energy, industry, including mining, transport, regional development, waste management, water management, telecommunications, tourism, town and country planning, land use) when the plans and programmes set the framework for future development consent for specific projects that require an EIA under national legislation.

For plans and programmes in other economic sectors as well as for plans and programmes determining use of small areas at the local level, and for minor modifications, an SEA is not applied automatically. Governments should determine whether an SEA is required or not.

Procedures for review of compliance 65

The objective of the Espoo Convention’s Implementation Committee (hereafter “the Committee”) is to assist Parties to comply fully with their obligations under the Convention. To this end, the Committee shall also consider any possible non-compliance by a Party with a view to securing a constructive solution.

The Committee might become aware of a possible non-compliance by submissions of the Parties or by any other source, including the public 66 , and should consider this information on a non-discriminatory, non-arbitrary and unbiased basis.

Where the Committee becomes aware of possible non-compliance by a Party with its obligations, it may request the Party concerned to furnish necessary information about the matter. Any reply and information in support shall be provided to the Committee within three months (or within a longer period, if the circumstances of a particular case require). The Committee shall consider the matter as soon as it receives the reply.

To assist the performance of the above functions, the Committee may:

  • request further information on matters under its consideration, through the Secretariat;
  • undertake, at the invitation of the Party of origin and/or the affected Party, information gathered in the territory of that Party;
  • consider any information forwarded by the Secretariat concerning compliance with the Convention;
  • as appropriate, seek the services of scientific experts and other technical advice, or consult other relevant sources.

The Committee shall decide on the content of any report or recommendations by consensus, send a copy of the draft report or recommendations to the Parties concerned, and shall take into account any representations from such Parties in the finalization of the report.

The Committee shall report on its activities at each meeting of the Parties through the Secretariat and make such recommendations as it considers appropriate, taking into account the circumstances of the matter. Each report shall be finalised by the Committee not later than ten weeks in advance of the session of the Meeting of the Parties at which it is to be considered.

The Meeting of the Parties may, upon consideration of a report and any recommendations of the Committee, decide upon appropriate general measures to bring about compliance with the Convention, as well as measures to assist an individual Party´s compliance. The Parties shall make every effort to reach a decision by consensus. If all efforts at consensus have been exhausted and no agreement is reached, the decision shall, as a last resort, be adopted by a three-fourths majority vote of the Parties present and voting at the meeting.

5.3 The Bern Convention 67

The Bern Convention is an initiative of the Council of Europe and is a binding international legal instrument in the field of nature conservation, covering most of the natural heritage of the European continent and extending to some States of Africa. It was the first international treaty to protect both species and habitats and to bring countries together to decide how to act on nature conservation. The implementation of the Bern Convention in EU Member States is established through the Birds and Habitats Directives.

The Convention aims to ensure the conservation of wild flora and fauna species and their habitats, especially those species and habitats whose conservation requires the co-operation of several states, and to promote such co-operation. Special attention is given to endangered and vulnerable species, including endangered and vulnerable migratory species specified in the appendices (see text box), and to the protection of habitats. The Treaty also takes account of the impact that other policies may have on natural heritage, and recognises the intrinsic value of wild flora and fauna, which needs to be preserved and passed to future generations.
Contracting Parties are obliged by the Convention to:

  • take all appropriate measures to ensure the conservation of the habitats of wild flora and fauna species and the conservation of endangered natural habitats. Such measures should be included in the Parties’ planning and development policies and pollution control; 
  • give special attention to the protection of areas of importance for migratory species, and which are appropriately situated in relation to migration routes, especially when used as staging, feeding, breeding or moulting areas; 
  • promote education and to disseminate information on the need to protect species and habitats and to control the introduction of exotic species.

Protected species and prohibited means of exploitation

  • Specially protected flora species are listed in Appendix I,
  • specially protected fauna species in Appendix II,
  • and protected fauna species, the harvesting of which is authorised
    but must be regulated, in Appendix III,
  • Appendix IV lists prohibited means and methods of killing, capture
    and other forms of exploitation.

The case-file system under the Bern Convention 68

The case-file system is a monitoring tool based on complaints for possible breaches of the Convention, which can be submitted by NGOs or private citizens. Based on the information submitted, the complaints so received are processed by the Secretariat of the Council of Europe, the Bureau and, when particularly relevant, also by the Standing Committee, according to their merits. When the Standing Committee or its Bureau considers that further information is needed, they can arrange for on-the-spot visits by independent experts, who report to the Standing Committee.

The case-file system is unusual as it is not based on any provisions within the Convention, but stems from a decision taken by the Standing Committee itself, and has proven to be a very successful problem-solving instrument. The Standing Committee remains free to decide the solution in each case, without being constrained by strict obligations, which may be a burden for the smooth co-operation among Contracting Parties.

The Secretariat examines all letters sent to the Standing Committee of the Convention itself, or to its Chairman or Secretariat, by a Contracting Party, individual, non-governmental organisation or group of private persons, and which contain a complaint about the failure of one or more Contracting Parties to comply with one or more provisions of the Convention.

After receiving the complaint, the case goes through a first screening by the Secretariat. On the basis of the information provided, and after requesting further information from the complainant, if necessary, it decides whether to take the case forward or not.

The Contracting Party concerned has a period of about four months to reply to the request for information from the Secretariat. On-the-spot appraisals are carried out with the agreement of the Party concerned.

The Standing Committee assesses the case-files and takes decisions on the measures to be adopted and on the status of the file. In case of a vote, decisions would need to be taken by a two-thirds majority of the votes cast.

It is important to stress the freedom of the Committee when deciding on a case. The Bern Convention is an instrument of co-operation among equal Parties, and the Standing Committee plays the role of a forum to discuss and help resolve problems, rather than that of a watchdog. Therefore, the procedure governing the case-files system is flexible, allowing for rapid decision making, and for freedom of choice in terms of the solutions proposed.

The Standing Committee may decide to take different measures, such as:

  • request for further information and reports to be presented;
  • propose an on-the-spot appraisal;
  • adopt a specific recommendation on the matter, whose implementation will be followed-up afterwards.

The Standing Committee can adopt two types of recommendations:

  • general recommendations, referred to all Parties or addressing a broad issue;
  • specific recommendations, targeting a specific country or a specific subject.

Follow-up of Standing Committee Recommendations can be done at Standing Committee meetings, but also through reports, meetings and reviews by the Group of Experts.

footnote 67

Convention on the Conservation of European Wildlife and Natural Habitats,
https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/104

footnote 64

Guidance on the Application of the Environmental Impact Assessment Procedure for Large-scale Transboundary Projects: http://ec.europa.eu/environment/eia/pdf/Transboundry%20EIA%20Guide.pdf

footnote 63

Guidance on Public Participation in Environmental Impact Assessment in a Transboundary Context: https://www.unece.org/fileadmin/DAM/env/documents/2006/eia/ece.mp.eia.7.pdf

footnote 62

Guidance on the Application of the Environmental Impact Assessment Procedure for Large-scale Transboundary Projects: http://ec.europa.eu/environment/eia/pdf/Transboundry%20EIA%20Guide.pdf

footnote 54

United Nations Economic Commission for Europe, The Aarhus Convention: An implementation guide, 2014

footnote 50

Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (transposition by 1 January 2018 and implementation by 31 March 2018)

footnote 49

Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, as amended by Directive 2006/21/EC, Directive 2009/31/EC and Directive 2013/30/EU (implementation by 1 January 2021)

footnote 48

Directive 79/409/EEC of the Council of 2 April 1979 on the conservation of wild birds (implementation on the entry into force of the Treaty i.e. 1 July 2006)

footnote 47

Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directives 97/11/EC of 3 March 1997 (implementation on the entry into force of the Treaty i.e. 1 July 2006), Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (implementation by 14 October 2016) and Directive 2014/52/EU (implementation by 1 January 2019)

footnote 40

The habitats and species concerned are defined by reference to species and types of natural habitats identified in the relevant parts of the Birds Directive and the Habitats Directive. The scope of the ELD is not restricted to the Natura 2000 network. The species mentioned in ELD which occur outside the SACs and SPAs and even migratory species are also included

footnote 39

The significance of any damage that has adverse effects on reaching or maintaining the favourable conservation status of habitats or species has to be assessed by reference to the conservation status at the time of the damage, the services provided by the amenities they produce and their capacity for natural regeneration. Significant adverse changes to the baseline condition should be determined by means of measurable data such as:

  • the number of individuals, their density or the area covered;
  • the role of the particular individuals or of the damaged area in relation to the species or to the habitat conservation, the rarity of the species or habitat (assessed at local, regional and higher level including at Community level);
  • the species’ capacity for propagation (according to the dynamics specific to that species or to that population), its viability or the habitat’s capacity for natural regeneration (according to the dynamics specific to its characteristic species or to their populations);
  • the species’ or habitat’s capacity, after damage has occurred, to recover within a short time, without any intervention other than increased protection measures, to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

Damage with a proven effect on human health must be classified as significant damage. The following does not have to be classified as significant damage:

  • negative variations that are smaller than natural fluctuations regarded as normal for the species or habitat in question;
  • negative variations due to natural causes or resulting from intervention relating to the normal management of sites, as defined in habitat records or target documents or as carried on previously by owners or operators;
  • damage to species or habitats for which it is established that they will recover, within a short time and without intervention, either to the baseline condition or to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

footnote 38

Damage took place not earlier than 30 April 2007 or the activity causing the damage was finished not earlier than 30 April 2007, or less than 30 years have passed since the emission, event or incident, resulting in the damage, occurred

footnote 32

See C-664/15, Protect, paragraph 81

footnote 31

See C-664/15, Protect, paragraph 102

footnote 30

CIS Guidance no 36 Exemptions to the Environmental Objectives according to Article 4(7):
https://circabc.europa.eu/sd/a/e0352ec3-9f3b-4d91-bdbb-939185be3e89/CIS_Guidance_Article_4_7_FINAL.PDF

footnote 28

See C-461/13, Bund für Umwelt und Naturschutz Deutschland e.V. v Bundesrepublik Deutschland

footnote 27

This includes new modifications to the physical characteristics of a surface water body, alterations to the level of groundwater, and new sustainable human development activities

footnote 24

See C-127/02, Waddenzee, paragraphs 66 – 70. In case C-243/15, the Court of Justice also confirmed that decisions adopted by the competent national authorities within the framework of Article 6(3) of Directive 92/43 (whether they concern a request to participate in the authorisation procedure, the assessment of the need for an environmental assessment of the implications of a plan or project for a protected site, or the appropriateness of the conclusions drawn from such an assessment as regards the risks of that plan or project for the integrity of the site, and whether they are autonomous or integrated in a decision-granting authorisation) are decisions, which fall within the scope of Article 9(2) of the Aarhus Convention

footnote 23

Guidance on the requirements for hydropower in relation to Natura 2000, p. 70: http://ec.europa.eu/environment/nature/natura2000/management/docs/Hydro%20final%20May%202018.final.pdf

footnote 22

Guidance on the requirements for hydropower in relation to Natura 2000: http://ec.europa.eu/environment/nature/natura2000/management/docs/Hydro%20final%20May%202018.final.pdf

footnote 21

See C-127/02, Waddenzee, paragraphs 66 – 70. In case C-243/15, the Court of Justice also confirmed that decisions adopted by the competent national authorities within the framework of Article 6(3) of Directive 92/43 (whether they concern a request to participate in the authorisation procedure, the assessment of the need for an environmental assessment of the implications of a plan or project for a protected site, or the appropriateness of the conclusions drawn from such an assessment as regards the risks of that plan or project for the integrity of the site, and whether they are autonomous or integrated in a decision-granting authorisation) are decisions, which fall within the scope of Article 9(2) of the Aarhus Convention

footnote 20

See, C-243/15, Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín (Slovak Bears II), para 46-49

footnote 18

See Commission Notice on Access to Justice in Environmental Matters, https://ec.europa.eu/environment/aarhus/pdf/notice_accesstojustice.pdf

footnote 17

See C-474/10 – Seaport (NI) and others, paragraphs 45 and 50

footnote 16

See C-295/10, Valčiukienė and Others, paragraphs 44-47 and 53

footnote 13

Environmental Impact Assessment of Projects Guidance on the preparation of the Environmental Impact Assessment Report: http://ec.europa.eu/environment/eia/pdf/EIA_guidance_EIA_report_final.pdf

footnote 12

See C-75/08, Mellor, paragraph 64

footnote 10

See C-66/06, Commission v Ireland, paragraph 64

footnote 11

See C-87/02, Commission v Italy, paragraph 49

footnote 09

See for example C-66/06, Commission v Ireland; C-255/08, Commission v Netherlands; C-435/09, Commission v Belgium

footnote 02

The EU’s ‘acquis’ is the body of common rights and obligations that are binding for all EU Member States. It constantly evolves and comprises: the content, principles and political objectives of the Treaties; legislation adopted in application of the treaties and the case law of the Court of Justice of the EU; declarations and resolutions adopted by the EU; measures relating to the common foreign and security policy; measures relating to justice and home affairs; international agreements concluded by the EU, as well as those concluded by EU countries between themselves in fields relevant to the EU’s activities.
(https://eur-lex.europa.eu/summary/glossary/acquis.html)

footnote 01

The rule of law is one of the EU’s fundamental values. It is the idea that both the EU itself and all EU countries are governed by a body of law (legal codes and processes) adopted by established procedures, rather than discretionary or case-by-case decisions.
(https://eur-lex.europa.eu/summary/glossary/rule_of_law.html)

footnote 54

United Nations Economic Commission for Europe, The Aarhus Convention: An implementation guide, 2014

footnote 62

Guidance on the Application of the Environmental Impact Assessment Procedure for Large-scale Transboundary Projects: http://ec.europa.eu/environment/eia/pdf/Transboundry%20EIA%20Guide.pdf

footnote 63

Guidance on Public Participation in Environmental Impact Assessment in a Transboundary Context: https://www.unece.org/fileadmin/DAM/env/documents/2006/eia/ece.mp.eia.7.pdf

footnote 64

Guidance on the Application of the Environmental Impact Assessment Procedure for Large-scale Transboundary Projects: http://ec.europa.eu/environment/eia/pdf/Transboundry%20EIA%20Guide.pdf

footnote 67

Convention on the Conservation of European Wildlife and Natural Habitats,
https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/104