Justifying a presumed standing for environmental NGOs: A legal assessment of Article 9(3) of the Aarhus Convention

• Published date: 01 November 2022
• Author: Audrey Danthinne,Mariolina Eliantonio,Marjan Peeters
• Date: 01 November 2022
• DOI: http://doi.org/10.1111/reel.12450

ORIGINAL ARTICLE

Justifying a presumed standing for environmental NGOs: A

legal assessment of Article 9(3) of the Aarhus Convention

Audrey Danthinne

1

| Mariolina Eliantonio

2

| Marjan Peeters

2

1

School of Law, University of Edinburgh,

Edinburgh, UK

2

Maastricht University, Maastricht, The

Netherlands

Correspondence

Audrey Danthinne, School of Law, University

of Edinburgh, Edinburgh, Scotland.

Email: audreydanthinne@hotmail.com

Abstract

The Aarhus Convention is a well-known cornerstone of environmental law on the

European continent. Nevertheless, interpretative dilemmas have arisen, particularly

in relation to access to justice for environmental nongovernmental organizations

(ENGOs). More precisely, while the standing criterion in Article 9(2) of the Conven-

tion is formulated in a rather precise and generous way for ENGOs, the standing cri-

terion in Article 9(3) has been deliberately kept vague and makes no reference to

ENGOs. In the meantime, some courts, both at the national and European Union

(EU) level, have linked the scope ratione personae of Article 9(2) to that of Article 9(3),

thus recognizing a presumed and therefore generous standing for ENGOs under both

provisions. Because the Aarhus Convention explicitly provides for such an advanta-

geous presumption only under Article 9(2), this article seeks to assess whether these

remarkable judicial interpretations nonetheless find a convincing basis in EU law or in

the Aarhus Convention respectively.

1|INTRODUCTION

The Convention on Access to Information, Public Participation in

Decision-making and Access to Justice in Environmental Matters

(Aarhus Convention)

1

entered into force in 2001 and currently counts

47 parties, including the European Union (EU) and all its Member

States.

2

Its access to justice pillar, contained in Article 9, requires

parties to provide wide access to justice to ensure compliance with its

other two pillars (i.e., access to information and public participation in

decision making) as well as with provisions of national environmental

law. While the creation of a separate pillar for access to justice has

been generally supported by the parties, its content, scope and legal

nature have been the subject of much debate due to the diverse and

longstanding national approaches to access to justice.

3

Accordingly,

Article 9 has proved to be the most difficult to implement

4

and has

given rise to a number of ‘interpretative dilemmas’, to use Jendro

ska's

terms, notably with regard to standing.

5

This article pays particular attention to Article 9(2) of the Aarhus

Convention, which applies to acts and omissions regarding permits for

specific activities subject to public participation due to their significant

impact on the environment, and Article 9(3), which concerns all other

acts and omissions that contravene national law relating to the

1

UNECE Convention on Access to Information, Public Participation in Decision-making and

Access to Justice in Environmental Matters (adopted in Aarhus Denmark on 25 June 1998,

entered into force on 30 October 2001) 2161 UNTS 447 (Aarhus Convention).

2

Council Decision (EC) 2005/370 of 17 February 2005 on the conclusion, on behalf of the

European Community, of the Convention on access to information, public participation in

decision-making and access to justice in environmental matters [2005] OJ L124/1.

3

J Jendro

ska, ‘Access to Justice in the Aarhus Convention: Genesis, Legislative History and

Overview of the Main Interpretation Dilemmas’(2020) 17 Journal for European

Environmental and Planning Law 372, 373.

4

‘Opening Remarks by Mr. Marek Belka, Executive Secretary of UN Economic Commission

for Europe, at the Third Meeting of the Parties to the Aarhus Convention in Riga, Latvia,

11–13 June 2008’<https://unece.org/fileadmin/DAM/env//pp/mop3/web/

speechBelkaRigafinal.pdf>2–3.

5

Jendro

ska (n 3) 404; K Relve, ‘Influence of Article 9(3) of the Aarhus Convention on Legal

Standing in Estonian Administrative Courts’(2009) 16 Juridica International 176, 176–178.

Received: 7 December 2021 Accepted: 15 June 2022

DOI: 10.1111/reel.12450

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium,

provided the original work is properly cited.

© 2022 The Authors. Review of European, Comparative & International Environmental Law published by Wiley Periodicals LLC.

RECIEL. 2022;31:411–420. wileyonlinelibrary.com/journal/reel 411