Article 9(4): a deep dive

In this blog, we take a deep dive into Article 9(4) of the Convention, and what the Compliance Committee suggests it requires.

Article 9(4) states:

“4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.”

The Implementation Guide notes that (i) article 9(4) is about providing the minimum qualitative standards that must be met in all article 9 procedures, as well as securing effective remedies (p. 199-201); (ii) the objective of JR is to have erroneous decisions corrected (p. 200); and (iii) in terms of what “fairness” requires:

“Fair procedures require the process, including the final ruling of the decision-making body, to be impartial and free from prejudice, favouritism or self-interest… Fair procedures must also apply equally to all persons, regardless of economic or social position, ethnicity, nationality or other such criteria … Moreover, fairness requires that the public be duly informed about the review procedure, as well as informed about the outcome of the review. Equitable procedures are those which avoid the application of the law in an unnecessarily harsh and technical manner” (p. 201)

The decisions of the Committee (whether or not yet endorsed by the Meeting of the Parties) emphasise that:

1. In determining compliance with Article 9 generally, the Committee pays attention to the general picture on access to justice in the Party concerned, looking at the legal framework in general and different possibilities of access to justice available at different stages of decision-making.[1] That includes both the legislative framework and how it has been applied in practice by the courts.[2] So, for example, in considering costs the ACCC will look at the costs system as a whole and in a systemic manner.[3] On that basis it has (i) held that while allowing environmental claimants to waive a court fee may be good practice, it could be “devoid of meaning” if they are later forced to pay significant costs;[4] and (ii) will look at whether claimants can offset or mitigate fees incurred through, for example, CFAs.[5] In the same way, in ACCC/C/2004/4 (Hungary) the ACCC indicated that while individual provisions of national act might not have been in conflict with the Convention, the cumulative impact could have led to non-compliance.
2. Having an adverse court decision does not necessarily translate into a denial of access to justice.[6]
3. Participation in an administrative process cannot be a precondition for standing in challenging the decision taken as a result of that procedure.[7] That said, as participation is important for governmental decision making, if NGOs develop a practice of deliberately not participating at the administrative stage and instead relying on court challenges, this could undermine the objectives of the Convention.[8]
4. The need for a clear, fair and transparent framework indicates that Parties to the Convention cannot rely on judicial discretion to implement article 9(4).[9]
5. Article 9(4) applies to appeals. So, Parties to the Convention are required to ensure that unfair, inequitable or prohibitively expensive costs orders are not imposed at the appeal stage.[10]
6. As to whether a procedure is “fair”: “fair” here means what is fair for the Claimant, not the public body defendant.[11] Fair procedures require that the process, including the final ruling, must be “impartial and free from prejudice, favouritism or self-interest”[12]. Obviously, this means that decision-making must not be biased.[13] Plaintiffs must be notified before any court hearing, and of the decision thereafter.[14] Moreover, where a decision is subject to review, “fair” includes a requirement to provide reasons for those decisions so that claimants can decide whether to challenge it.[15] That said, while the requirement for a fair procedure applies to all persons, criteria that distinguish between individuals and legal persons (such as different fees for natural persons and companies), is not necessarily unfair.[16] The Committee has also noted, with regard to the English system, that the fact a developer is entitled to a full merits review while third parties are not is not “fair”.[17]
7. In terms of “timeliness”: one year for a Supreme Court to deliver a decision is not untimely[18]. Article 9(4) does not require the Party concerned to set specific deadlines for court judgments.[19]
8. In terms of “prohibitively expensive”, the Committee emphasises that the public interest nature of environmental claims should be given sufficient weight in any court decision apportioning costs.[20] Requiring claimants to pay the full quantum of costs to multiple defendants, including developers who join proceedings of their own accord, is likely to infringe the Convention.[21] A filing fee of c. 400EUR was prohibitively expensive.[22] Charging full filing fees again for amending claims is breach of the Convention.[23] The amount of a costs award should take into account the stage of proceedings. It would be inequitable to allow the recovery of the full £5,000 Aarhus cap at permission stage.[24] It is in breach of the Convention to allow represented parties to recover their costs while litigants in person are subject to a desultory hourly rate.[25]
9. In terms of remedies: the requirement to provide “effective” remedies includes a requirement that those remedies should prevent irreversible damage to the environment.[26] In considering preliminary orders for injunctions, it should be irrelevant whether the public raised concerns during earlier public participation procedures. Similarly, the particular grounds on which an EIA or SEA decision is challenged in the substantive claim should be irrelevant. Instead, if there are concerns about environmental harm, that should be a “major factor” to be taken into account.[27]

This blog post was written by Nick Grant.

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[1] ACCC/C/2011/58 (Bulgaria) [52]. See too ACCC/C/2008/32 (EU) (for article 9(3)); ACCC/C/2014/119 (Poland) [107]; ACCC/2010/48 (Austria) [70]; ACCC/C/2016/138 (Armenia) [77]; ACCC/C/2015/135 (France) [62]; ACCC/2016/137 (Germany) [99]

[2] ACCC/C/2005/11 (Belgium) [30]; ACCC/C/2008/31 (Germany) [64]. In these circumstances the mere hypothesis that the courts could interpret national law in a way contrary to the Convention is not sufficient to establish non-compliance. (2008/31 (Germany) ibid).

[3] ACCC/C/2014/111 (Belgium); ACCC/C/2008/33 (UK) [128]; ACC/C/2015/134 (Belgium) [148], ACCC/C/2015130 (Italy) [82]; 2013/86 (UK) [106].

[4] 2013/98 (Lithuania) [148]-[149]

[5] ACCC/C/2013/90 (UK)

[6] ACCC/C/2004/2 (Kazakhstan) [27]

[7] ACCC/C/2012/76 (Bulgaria) [68]. See too in the art 9(3) context ACCC/C/2015/135 (France) [74]

[8] Ibid.

[9] ACCC/C/2008/33 (UK) [39].

[10] ACCC/C/2008/24 (Spain) [108]-[109]

[11] ACCC/C/2008/27 (UK) [45]

[12] ACCC/C/2011/57 (Denmark) [44].

[13] ACCC/C/2013/81 (Sweden) [105].

[14] ACCC/C/2004/6 (Kazakhstan) [28]-[29].

[15] ACCC/C/2013/81 (Sweden) [96].

[16] ACCC/C/2011/57 (Denmark) [44]

[17] ACCC/C/2013/90 (UK) [145]-[146] (though query whether an appeal to the Secretary of State is actually an article 9 procedure).

[18] ACCC/C/2011/62 (Armenia) [38]

[19] ACCC/C/2013/106 (Czech Republic) [111]-[112]

[20] ACCC/C/2015/130 (Italy) [83], ACCC/C/2014/111 (Belgium).

[21] ACCC/C/2015/130 (Italy) [93]-[94]

[22] ACCC/C/2011/57 (Denmark) ibid. Upheld in ACCC/C/2015/130 (Italy) at [74]-[75]

[23] ACCC/C/2015/130 (Italy) at [79]

[24] ACCC/C/2015/131 (UK) [140]-[142]

[25] ACCC/C/2015/131 (UK) [150]

[26] ACCC/C/2012/76 (Bulgaria) [69]

[27] ACCC/C/2012/76 (Bulgaria) [71]

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.