Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

follows after the subject is raised. The panel contains a stronger (average) participation since this
will result in an advice of the citizens that have to be taken into consideration by the authorities.
Referenda can be ascribed as maximum participation, although depending on the type of
referenda. 287 These may occur in three phases of the process: during the agenda, preparation and
decision-making. Other phases may also occur. 288 Addink also points out that the greater the
potential of the administrative act, the more people should be involved in the participation process.
Addink distinguishes three forms of appreciation of the participation. First of all, participation may
occur as a necessary complement with respect to representative democracy (e.g. when a majority
government takes the minority insufficiently in consideration), in order to increase legitimacy of the
administration or in order to exercise powers as close to citizens as possible (decentralisation). 289
Application of principle to environmental issues
The transparency principle is considered of great importance with regard to environmental issues.
This was already established by the Rio Declaration in Principle 10 which states that
"environmental issues are best handled with the participation of all citizens, at the relevant level,
and thus public education, participation and access to information and redress should all be
promoted”. In the Aarhus Convention this principle also received great attention. As mentioned in
the previous paragraph, two EU Directives were adopted which were greatly inspired by the Aarhus
Convention. The first of these Directives concerned the transparency principle. The second
concerned the Directive 2003/35/EC providing for inter alia public participation in respect of the
drawing up of certain plans and programmes relating to the environment. The Directive states in its
preamble that effective public participation in the taking of decisions enables the public to express,
and the decision-maker to take account of, opinions and concerns which may be relevant to those
decisions. Hereby the accountability and transparency of the decision-making process will be
increased. This will contribute to public awareness of environmental issues and support for the
decisions taken. Participation should include participation by associations, organisations and
groups, in particular non-governmental organisations promoting environmental protection.
Moreover, public participation is of central importance in the EIA and SEA Directives which also
illustrates the importance of the principle. It is argued that public participation can lead to a better
decision, because it provides a valuable source of information on key impacts, a consideration of
citizen's needs, more legitimacy, the addressing of conflicts in a previous stage and better
implementation. 290 However, a distinction should be made between "the public" and "the public
concerned". The latter has the right to access environmental information, to participate actively
(Article 6) and is guaranteed access to courts (Article 11). Only those with a direct interest fall
under this category and NGO's receive a special supervisory rule by this article. 291 The EIA
Directive contains many information requirements on several occasions; before the granting of an
authorization to the public (Art. 4(4) and 6(1)(2)), the public concerned (Art. 6 (2)-(4) and Art. 8)
and the public of foreign MS (Art. 7); when the decision is taken (to the public and the public of
foreign MS if necessary according to Art. 9); and during the review procedure (Art. 11). This shows
the importance of the public participation principle. This is also confirmed by the CJEU. 292 The
Commission gives as examples of participation: public meetings, advisory panels, open houses,
interviews, questionnaires and participatory appraisal techniques. 293
Other environmental EU legislation also emphasise the importance of public participation. In the
Water Framework Directive (WFD), also of relevance for shale gas exploitation, Article 14
287
Addink (2009), pp. 104-105.
288
Addink (2009), p. 99.
289
Addink (2009), pp. 108-109.
290
http://ec.europa.eu/environment/legal/law/pdf/eia/6%20PP%20in%20EIA%20and%20SEA%20session%207_revised2.pd
291
C-263/08, Djurgarden [2009] ECR I-09967, paragraph 40; A-G Sharpston on C-263/08, Djurgarden,paragraph 50.
292
C-435/97, WWF and others / Autonome Provinz Bozen and others [1999] ECR I-05613.
293
http://ec.europa.eu/environment/legal/law/pdf/eia/6%20PP%20in%20EIA%20and%20SEA%20session%207_revised2.pd
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