The relationship between EU secondary rules and the principles of effectiveness and effective judicial protection in environmental matters: towards a new dawn for the ‘language of rights’?

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Abstract

Environmental policy is an area which has been quite heavily
proceduralised and is a rather peculiar example of ‘multi-level proceduralisation’
because of the presence of the Aarhus Convention. This paper explores the relevant
procedural provisions taken in the field of environmental law and in particular in
implementation of the Aarhus Convention, and examines the case law which has
involved these provisions. This case law is specifically discussed as concerns the way
in which the Court of Justice deals with the interaction between the relevant secondary
rules and the general principles of effectiveness and effective judicial protection, as
well as Article 47 of the Charter of Fundamental Rights concerning the right to an
effective remedy. It is shown that it is difficult to distill a consistent approach on the
part of the Court with regards to this interaction, and that much depends on the
specifics of the case and the question posed by the referring court. However, with the
latest case law, despite the apparent lack of underlying rights which would be able to
trigger the applicability of the Charter of Fundamental Rights, the Court of Justice
seems to be moving towards a heavier involvement of Article 47 of the Charter and,
consequently, of a ‘language of rights’, which increasingly plays a pivotal role in
boosting the effectiveness of the Aarhus Convention.
Original languageEnglish
Pages (from-to)95-116
JournalReview of European Administrative Law
Volume12
Issue number2
DOIs
Publication statusPublished - 2019

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