European Papers (Jul 2024)
Access to Justice in Environmental Matters in the EU Legal Order: The “Sectoral” Turn in Legislation and Its Pitfalls
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2024 9(1), 261-274 | European Forum Insight of 08 July 2024 | (Table of Contents) I. Introduction. - II. Art. 9(3) of the Aarhus Convention and access to justice. - III. Art. 9(3) and the EU legal system: a story of uneasy bedfellows. - IV. The “sectoral” approach and its shortcomings. - iv.1. The genesis of the “sectoral” approach. - iv.2. Analysis of the sectoral provisions: a patchwork of inconsistent approaches. - V. Conclusion | (Abstract) Access to justice in environmental matters is one of the three pillars of the Aarhus Convention, to which both the EU and its Member States are Parties. In the Convention, access to justice is subdivided into four limbs. Art. 9(3) contains the general obligation of access to review procedures for the public of acts and omissions of private persons and public authorities concerning national law relating to the envi-ronment. Art. 9(3) had to be transposed by the Parties to the Convention, taking the discretion left by the vague wording of the provision into account. At the EU level, unlike for art. 9(1) and (2), there is no formal transposition of art. 9(3) in a dedicated Directive, because of Member States’ reluctance. The so-lution found by the Commission to remedy this lack of EU legislation on the matter was the publication of a soft law instrument in 2017. Since then, we have witnessed a shift in the approach used by the EU legislator, with access to justice provisions being incorporated directly into several pieces of “sectoral” legislation (Regulations and Directives), across various environmental areas. This Insight aims at retrac-ing the history of art. 9(3) of the Aarhus Convention in the EU legal order and at analysing and evaluat-ing the recent tendency of including access to justice rights in sectoral legislation.
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