THE AARHUS CONVENTION – THE LEGAL CULTURAL PICTURE

Abstract

The Aarhus Convention was ratified in France on the 8th July 2002 and came into force on the 6th October 2002 by the Law n° 2002-285 of 28 February 2002.The Convention was then applied by the Decree of 12 September 2002. Generally speaking, the Convention did not bring about many legislative changes. Even before the Convention was adopted France had some provisions on what are known as the three pillars. This notwithstanding, the rights provided in the Convention are still not fully enforceable in France and the report will outline some of the reasons for this.

One peculiarity of the French situation is that the courts had an important role to play. Indeed, citizens and NGOs have seen the Convention as an opportunity to improve their rights and since the ratification they started to invoke it before the French courts.

The Conseil d’Etat (State Council, the highest administrative court) plays an important role in terms of integration of both EU and international law into the domestic law. The administrative courts have laid down the conditions under which an international provision is to be given direct effect, with a mechanism that resembles to the “direct effect” principle in EU. Since the 1989 Nicolo case, the Conseil d’Etat changed its position and ruled that it was allowed to check the compliance of a measure with an international treaty, even if this measure was posterior to the treaty. This offered the courts the occasion to interpret the Aarhus Convention and to define its legal impact on domestic law. The Convention is a mixed agreement because it is an international law instrument but it is also – to some extent – part of EU law. Without going into details, this basically means that many among its provisions are to be applied by the French courts, whether or not the legislation has been transposed and implemented. As a consequence, according to the Conseil d'Etat, the provisions in the first and second pillars, which have been implemented by the EU Directive, can be invoked by individuals. On the contrary, individuals cannot avail themselves of the rights bestowed in the third pillar as long as the Directive on access to justice proposed by the European Commission is not enacted. Moreover, the Conseil d'Etat has recognised direct effects to a few provisions of the Aarhus Convention only, having chosen “a soft interpretation of this treaty’s requirements”. More specifically, the Conseil d’Etat recognises direct effect on the basis of the analysis of each individual paragraph in any of the Convention articles rather than taking any article as a whole. So far, the Conseil d'Etat has held that the provisions of Article 6, paragraphs 1, 2, 3 and 7, of the Convention are directly applicable in the domestic legal order. The provisions of Article 6, paragraphs 4, 6, 8, and 9, and of Articles 7, 8, and 9, paragraphs 3 and 5, instead were held to merely establish obligations between the Member States. In other words, the provisions last listed have no direct effect in the domestic legal order and they can thus be invoked only by the claimant or by the defender.

Finally, it has to be noted that French environmental policy has been strengthened thanks to a political process called the “Grenelle de l’Environnement” (Environment Roundtable). Among the outcomes from these environment roundtables are that the Grenelle I and GrenelleII statutes, each containing provisions collecting, modifying and, to some extent, strengthening the French Environment Code and addressing compliance with the Aarhus Convention.