Proposal for a Council Decision establishing the position to be taken on behalf of the European Community on the interpretation of Article 14 of the Aarhus convention
Date: 2008-04-07
Institutions: European Commission
Subjects: access to information, access to the courts, environmental law, international convention, transparency in decision-making

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 7.4.2008 
COM(2008) 174 final 

Proposal for a 

COUNCIL DECISION 

establishing the position to be taken on behalf of the European Community on the 
interpretation of Article 14 of the Aarhus Convention 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

The Community is a Party to the Convention on Access to Information, Public Participation in 
Decision-making  and  Access  to  Justice  in  Environmental  Matters  (done  at  Aarhus,  25  June 
1998 – hereinafter: 'the Aarhus Convention').1 

The  Community  has  also  concluded  the  amendment  to  the  Convention  concerning  public 
participation  in  decisions  on  the  deliberate  release  into  the  environment  and  placing  on  the 
market of genetically modified organisms2, adopted on 27 May 2005 by decision II/1 at the 
second Meeting of the Parties. 

Article  14  of  the  Convention  sets  out  the  procedures  to  be  followed  to  adopt  amendments 
thereto. Paragraph 4 of this Article concerns more specifically amendments other than those 
to an annex to the Convention; this provision reads as follows: 

"4. Amendments to this Convention adopted in accordance with paragraph 3 above shall be 
communicated  by  the  Depositary  to  all  Parties  for  ratification,  approval  or  acceptance. 
Amendments to this Convention other than those to an annex shall enter into force for Parties 
having ratified, approved or accepted them on the 90th day after the receipt by the Depositary 
of notification of their ratification, approval or acceptance by at least three fourths of these 
Parties. Thereafter they shall enter into force for any other Party on the 90th day after that 
Party deposits its instrument of ratification, approval or acceptance of the amendments." 

The expression "at least three fourths of these Parties" is open to various interpretations as it 
can refer either to all Parties to the Convention as this number may evolve over time ("current 
time  approach"),  or  to  the  Parties  to  the  Convention  that  were  Parties  at  the  time  of  the 
adoption of the amendment ("fixed time approach"), or to the number of Parties at the time of 
the adoption of the amendment ("mixed time approach"). 

Depending on the interpretation of Article 14(4), amendments to the Convention (other than 
those  to  an  annex)  will  enter  into  force  on  an  earlier  or  later  date,  as  the  number  of  Parties 
whose  agreement  is  necessary  for  the  entry  into  force  will  be  greater  in  the  "current  time 
approach" than in the "fixed time approach" or "mixed time approach". 

In  the  event  where  different  interpretations  of  an  ambiguous  provision  are  possible,  Parties 
have the ultimate power to agree on its interpretation. Such an agreement can be reflected in 
an appropriate decision taken by the Meeting of the Parties.  

Desiring to bring about an early entry into force of the amendment to the Convention adopted 
by  decision  II/1  at  the  second  Meeting  of  the  Parties,  and  any  further  amendments  to  the 
Convention, the Parties to the Aarhus Convention are expected to adopt at the third Meeting 
of the Parties in June 2008 a decision on the interpretation to be given to Article 14(4) of the 
Convention favouring either the "fixed time approach" or the "mixed time approach".  

The  European  Community's  position  regarding  the  interpretation  of  Article  14(4)  of  the 
Convention it wishes to support should therefore be determined. 

To  that  effect,  it  is  appropriate  to  resort  to  Article  300(2),  second  subparagraph,  of  the  EC 
Treaty, which provides that the Council, acting by qualified majority on a proposal from the 

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Council  Decision  2005/370/EC  of  17  February  2005  on  the  conclusion,  on  behalf  of  the  European 
Community,  of  the  Convention on  access  to  information,  public  participation in decision-making  and 
access to justice in environmental matters (OJ L 124, 17.5.2005, p. 1). 
Council  Decision  2006/957/EC  of  18  December  2006  on  the  conclusion,  on  behalf  of  the  European 
Community,  of  an  amendment  to  the  Convention  on  access  to  information,  public  participation  in 
decision-making and access to justice in environmental matters (OJ L 386, 29.12.2006, p. 46). 

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Commission, shall establish the position to be adopted on behalf of the European Community 
in  a  body  set  up  by  an  international  agreement,  when  that  body  is  called  upon  to  adopt 
decisions having legal effects.  

It is also appropriate for the Community to support either the "fixed time approach" or "mixed 
time  approach"  since  either  of  these  would  bring  about  an  earlier  entry  into  force  of  the 
amendment  to  the  Convention  adopted  on  27  May  2005  by  decision  II/1  at  the  second 
Meeting of the Parties, and any further amendments to the Convention. 

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Proposal for a 

COUNCIL DECISION 

establishing the position to be taken on behalf of the European Community on the 
interpretation of Article 14 of the Aarhus Convention 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community  and  in  particular  Article 
175(1) in conjunction with Article 300(2), second subparagraph, thereof, 
Having regard to the proposal from the Commission3, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  Community  is  a  Party  to  the  Convention  on  Access  to  Information,  Public 
Participation  in  Decision-making  and  Access  to  Justice  in  Environmental  Matters 
(done at Aarhus, 25 June 1998 – hereinafter: 'the Aarhus Convention').4  

Article 14(4) of the Aarhus Convention, which establishes the conditions for entry into 
force  of  amendments  to  the  Convention  other  than  those  to  an  annex,  is  open  to 
different  interpretations  due  to  the  ambiguity  inherent  in  the  expression  "by  at  least 
three fourths of these Parties". 

Parties to the Convention have the ultimate power to agree on the interpretation of the 
Convention. Such an  agreement can be reflected in  an appropriate decision taken  by 
the Meeting of the Parties. 

The Parties to the Aarhus Convention, desiring to resolve an interpretative ambiguity 
to  bring  about  an  early  entry  into  force  of  the  amendment  to  the  Convention  which 
they  adopted  at  the  second  Meeting  of  the  Parties  by  decision  II/1,  and  any  further 
amendments to the Convention, are expected to agree at the forthcoming Meeting of 
the Parties on the interpretation to be given to Article 14(4) of the Convention. 

(5) 

The  European  Community  should  support  an  interpretation  of  Article  14(4)  of  the 
Convention which is favourable to the early entry into force of amendments,  

HAS DECIDED AS FOLLOWS: 

Sole Article 

On  the  occasion  of  the  third  Meeting  of  the  Parties  to  the  Aarhus  Convention,  the 
Commission shall support on behalf of the Community an interpretation of the expression "by 
at least three fourths of these Parties" as contained in Article 14(4) of that Convention which 
would ensure an early entry into force of amendments. 

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OJ C , , p. . 
Council  Decision  2005/370/EC  of  17  February  2005  on  the  conclusion,  on  behalf  of  the  European 
Community,  of  the  Convention on  access  to  information,  public  participation in decision-making  and 
access to justice in environmental matters (OJ L 124, 17.5.2005, p. 1). 

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Done at Brussels,  

For the Council 
The President 

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