分科会報告
EUによる手続的環境権の保障に関する諸問題
―オーフス条約遵守委員会による審査を中心に―
2023 年 2023 巻 43 号 p. 121-138
詳細
2023 年 2023 巻 43 号 p. 121-138
Procedural Environmental rights consist of three rights: access to information, public participation and access to justice in environmental matters. These rights, first enshrined in the 10th principle of the Rio Declaration on Environment and Development in 1992, are elaborated in the Aarhus Convention adopted in 1998. The European Union, along with all its Member States, ratified the Convention and has taken some internal measures to guarantee these procedural rights at the level of Member States and of EU institutions. At first glance, the EU’s implementation of the Convention appears adequate and has no problems. In practice, however, several cases challenging the EU’s compliance with the Convention have been brought before the Aarhus Convention Compliance Committee （ACCC）. In some, the EU has been declared non-compliant with the Convention.
This paper first describes the EU’s forms of implementation of the Convention and the structure of Compliance Mechanism managed by the ACCC and Meeting of the Parties （MOP） to the Convention, followed by an analysis of the EU’s cases of noncompliance with the Convention. EU has compliance issues in public participation and access to justice.
Regarding access to justice as stipulated in Article 9（3） of the Convention, the main issue is the guarantee of such access by the EU institutions. The EU had established a procedure called the Internal Review （IR） in the Aarhus Regulation, an EU implementation measure of the Convention. However, the ACCC pointed out some inadequacies of the IR in light of obligations under the Article 9（3） and also examined other related rules in EU law （e.g., action for annulment under Article 263 TFEU）. As a result, the ACCC concluded that there was no system to ensure access to justice at the level of the EU institutions. Regarding public participation, the ACCC has pointed out that the provisions on public participation set forth in several directives and other EU instruments are not in line with the obligations in the Convention.
The EU has taken a contrasting attitude toward these noncompliance cases. For access to justice cases, the EU blocked the endorsement of its own noncompliance at the MOP, but eventually changed course and achieved the revision of the IR in a few years to improve access to justice. On the other hand, for cases of public participation, the EU has followed the MOP practice, but has yet to recover compliance in any case.
