22/04/2015
Article in Italian
The Aarhus Convention is governing Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. It is the directive of 2003 (No. 35) which implements the Convention and therefore provides for public participation in the preparation of certain plans and programs on the environment. While it is the directive of 2011 which regulates the EIA. In particular, states that Member States should ensure - in accordance with its laws on the matter - so that the members of the "public concerned" that having a sufficient interest or, alternatively, alleging the violation of a right - in cases where the administrative procedural law of a Member State requires this as a precondition - can appeal against decisions, acts and omissions subject to the provisions of the Directive to challenge the substantive or procedural legality.
The Directive defines what is meant by "public concerned": the public affected or likely to be affected decision-making procedures in the area of EIA or having an interest in such procedures.
Hereof that not all natural persons, legal entities or organizations pertaining to that notion of "public concerned", because only those who have a sufficient interest or, where appropriate, that they maintain the impairment of a right shall be entitled to sue. The directive, in fact, provides for two hypotheses regarding the conditions of admissibility of actions: the admissibility of an action may be subject to the existence of a "sufficient interest", or the existence of "infringing" according to the national legislation refers to one or other of these conditions.
The Directive provides that Member States determine what constitutes a sufficient interest and impairment of a right, consistently with the objective of giving the public concerned wide access to justice. In this respect, the Aarhus Convention states that what constitutes a sufficient interest or impairment of a right is determined "according to the national law and consistently with the objective of giving the public concerned wide access to justice."
It follows that the Member States have a broad discretion to determine what constitutes a "sufficient interest" or a "breach of law". A discretion which, however, finds its limits in compliance with the objective of giving the public concerned wide access to justice.
It follows that an administrative decision not to make a EIA, can not prevent a single part of the "public concerned" and that meets the criteria laid down by national law with regard to the '"sufficient interest" or "breach of law "to challenge the same decision in an action brought against the same, or against a decision subsequent authorization.
