The United National Nations Economic Commission for Europe (UNECE)’s convention on access to information, public participation in decision-making processes and access to justice in environmental matters was signed in Aarhus, Denmark in 1998 and came into effect in 2001. Switzerland ratified the Convention in March 2014 and has been a party to the agreement since 1 June 2014, along with forty-five other states and the EU.
1. The Convention has three main aspects
- First aspect: Environmental information
- Second aspect: Public participation in decision-making on environmental matters
- Third aspect: Access to justice in environmental matters
First aspect: Environmental information (Arts. 4 and 5)
Active environmental information (Art. 5)
The Convention differentiates between the active provision of environmental information and the principle of giving the public the right to access such information.
The active dissemination of environmental information (Art. 5) means that authorities must make information about the environment available in a transparent manner. They are to do this particularly by means of lists, registers or files. The provision of information should be free of charge.
The Convention also requires the parties to provide a comprehensive environment report every three to four years.
Access to information (Art. 4)
Freedom of information means that the public is able to access documents held by the public authorities. The Aarhus Convention specifies this principle with relation to environmental information; any member of the public may request that such information be made available. An interest does not have to be stated. Those authorities which hold environmental information are responsible for making it available. The Convention contains a comprehensive list of grounds on which the authorities may refuse or postpone the disclosure of information.
Second aspect: Public participation in decisions on environmental activities (Art. 6 - 8)
This primarily concerns projects which must undergo an environmental impact assessment (EIA) (Art. 6). The Convention requires certain regulations to be observed for these projects. For example, the applicant must provide a report on a project's impact on the environment and any documents relating to the project must be made public. The Convention also lists the projects which must undergo an EIA.
The second aspect also includes the development of plans and programmes relating to the environment and the preparation of regulations and norms (Arts. 7 and 8). Here also, the Convention calls on states to ensure that information on projects is made publicly available and that the public can comment on them. The results of public participation should be taken into account as far as possible.
Third aspect: Access to justice in environmental affairs
Members of the public must have the right to go before a court of law if
- their request for information is not granted (Art. 9 para. 1)
- if members of the public concerned or environmental organisations are not permitted to participate in projects requiring an EIA (Art. 9 para. 2)
- if the authorities concerned with EIA-relevant decisions contravene environmental law (Art. 9 para. 2)
A very general right to contest decisions is granted under Art. 9 para. 3 of the Convention: members of the public should have access to administrative or judicial procedures to challenge acts and omissions which contravene provisions of its national law relating to the environment.
2. Reporting by the Contracting Parties
The parties should regularly report on the implementation of the Convention (Art. 10 para. 2 of the Convention).
Usually countries do this every four years at the meetings of the Contracting Parties.
There is a protocol to the Aarhus Convention, the Protocol on Pollutant Release and Transfer Register (PRTRs). Switzerland ratified this protocol at the end of of 2006. The Swiss register was set up at the beginning of 2009.
4. Implementation of the Convention in Swiss law
The Aarhus Convention requires the Contracting Parties to ensure that the provisions of the Convention are implemented.
First aspect: Implementation of provision on environmental information (Arts. 4 and 5 Aarhus Convention)
Swiss environmental legislation contains sufficient provisions on the active provision of environmental information (see. e.g. Art. 10e Environmental Protection Act [EPA], Art. 34 Forest Act [ForA], Art. 25a Nature and Cultural Heritage Act [NCHA] and Art. 50 Water Protection Act [WPA]).
In order to ensure public access to information, the Environmental Protection Act contains a provision (Art. 10g EPA) granting the public the right to access documents which contain environmental information. This regulation applies to both the Confederation and the cantons. At federal level, the Freedom of Information Act also applies; this regulates the procedure for requesting access to information, the grounds for restricting access and the conciliation procedure. Under Art. 10g para. 2 EPA, access to documents containing environmental information must also be granted in the case of documents produced before 1 July 2006 - this is not provided for by the Freedom of Information Act.
The cantons are required to regulate access to environmental information themselves, taking into account the provisions of the Aarhus Convention. Most cantons already have legislation on freedom of information. Those which do not can apply federal law appropriately (Art. 10g Abs. 4 EPA)
Under the EPA, the Federal Council should present an environment report to parliament every three years (Art. 10f EPA).
Second aspect: Implementation of provisions on public participation in decisions on environmental activities (Art. 6-8 Aarhus Convention)
The participation procedure for the public and for stakeholders in projects that are subject to an Environmental Impact Assessment (EIA) is regulated under Art. 10a ff. EPA. Further projects need to be added to the list those that must undergo an EIA under the Environmental Impact Assessment Ordinance (EIAO).
Swiss law also recognises the public's right to participation when plans, programmes and statutory rules (acts and ordinances) are adopted (e.g. Art. 4 Spatial Planning Act [SPA], Art. 3 ff. Consultation Procedure Act [CPA]).
Third aspect: Implementation of provisions on access to judicial procedure in environmental matters
Access to justice in environmental matters is guaranteed. The persons concerned may apply to the courts if they are denied access to documents containing environmental information. But they can also turn to the courts if their rights are violated as a party to an authorisation procedure or if they believe that environmental law was not complied with during this procedure (Art. 9 para. 1 and 2 Aarhus Convention). Switzerland also respects environmental organisations' right of appeal as required by the Convention: organisations which have received the right to appeal from the Federal Council can seek a judicial review of the authorisation of projects subject to an EIA (Art. 55 EPA).
Finally, environmental organisations with a right of appeal have access to judicial procedures if they believe that the provisions of legislation on nature and cultural heritage have been contravened (Art. 9 para. 3 Aarhus Convention, Art. 12 NCHA).
Last modification 28.11.2018