Preface |
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Chapter 1 Introduction. The Making of a New European Legal Culture: The Aarhus Convention |
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5 | (4) |
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2 The Aarhus Convention and legal culture |
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9 | (2) |
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3 Working on the tetes de chapitre of administrative law |
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11 | (3) |
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14 | (2) |
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5 The making of a new European legal culture? |
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16 | (3) |
Chapter 2 The Aarhus-Acquis in the EU. Developments in the Dynamics of Implementing the Three Pillars Structure |
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19 | (1) |
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2 First pillar: access to information |
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20 | (7) |
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2.1 General framework of access to information at EU level |
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20 | (3) |
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2.2 General framework of access to information at Member State level |
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23 | (2) |
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25 | (2) |
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3 The second pillar: public participation |
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27 | (8) |
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3.1 Public participation requirements at EU level, as applied by institutions and bodies |
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28 | (1) |
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3.2 Public participation at Member State level based on EU law |
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29 | (2) |
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3.3 Recent developments in public participation at EU and international levels |
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31 | (4) |
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4 The third pillar: Access to justice in the EU and its Member States in general |
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35 | (30) |
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Access to justice at EU level: the Aarhus Regulation |
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38 | (15) |
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4.2 Access to information and its relation to access to justice at national level |
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4.3 Public participation and its relation to access to justice at Member States' level |
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4.4 Access to justice under Article 9(3) and (4) of the Aarhus Convention: options for reforming EU law |
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53 | (10) |
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4.5 Role of national judges-different forms of interpretation requirements to ensure compliance with EU law |
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63 | (2) |
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5 Recent developments and trends-a political opening for further environmental governance? |
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65 | (3) |
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5.1 Complementary alternatives to meet the requirements of the Aarhus Convention |
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66 | (2) |
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68 | (5) |
Chapter 3 The Aarhus Convention-The Legal Cultural Picture. Country report for France |
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73 | (2) |
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2 Right to access to documents/information |
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75 | (1) |
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2.1 Before the implementation of the Aarhus convention |
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75 | (1) |
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3 Implementation of access to environmental information |
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76 | (7) |
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3.1 Subject matter of the right to access |
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76 | (2) |
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3.2 The interaction of right of access with duties to make some information generally available and with Directive 2003/98/EC on the re-use of public sector information |
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78 | (1) |
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3.3 User friendliness of the environmental information (Art. 5(2) AC) |
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79 | (1) |
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3.4 Information held by some private law entities (e.g. concessionaires) |
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80 | (1) |
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3.5 The exceptions to the right of access (with specific reference to the "confidentiality of the proceedings of public authorities") |
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81 | (1) |
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3.6 The costs for exercising the right to access |
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82 | (1) |
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83 | (7) |
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4.1 Before the implementation of the Aarhus Convention |
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83 | (2) |
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4.2 The implementation of participation rights granted by the Aarhus Convention |
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85 | (5) |
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4.2.1 Different participation rules applicable to specific activities, plans, programs and policies, and normative instruments |
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85 | (2) |
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4.2.2 Participation beyond defence and consultation, as negotiation or co-decision, and compensation mechanisms to avoid NIMBY and facilitate compromise |
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87 | (1) |
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4.2.3 eNGOs participation rights (also considering Art. 7-"public which may participate") |
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87 | (1) |
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4.2.4 A reasonable timeframe for the different phases |
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88 | (1) |
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4.2.5 A comparison between the Aarhus convention requirements for participation and those of EU EIA and SEA |
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88 | (1) |
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4.2.6 Taking into account the results of public participation |
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89 | (1) |
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90 | (7) |
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90 | (1) |
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5.2 Implementation of the third pillar |
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91 | (12) |
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5.2.1 Alternatives to court procedures |
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91 | (2) |
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5.2.2 Standing, including of eNGOs |
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93 | (1) |
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5.2.3 The review of "substantive and procedural legality" as required by Art. 9(2) of the Aarhus Convention |
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94 | (1) |
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5.2.4 The remedies available |
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95 | (1) |
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5.2.5 Time and costs of judicial remedies and legal aid |
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96 | (1) |
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97 | (6) |
Chapter 4 The Aarhus Convention, The Legal Cultural Picture: Country Report for Germany |
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103 | (1) |
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2 The right to access to environmental information |
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103 | (8) |
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103 | (5) |
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2.1.1 The right to access to environmental information |
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103 | (3) |
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2.1.2 Interaction of the right of access with duties to make some information generally available |
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106 | (1) |
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2.1.3 The duty to provide information and private law entities |
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107 | (1) |
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2.1.4 Influence of German legislation on the Aarhus Convention in the field of access to environmental information |
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108 | (1) |
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108 | (3) |
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2.2.1 The right to access environmental information and the existing legal framework |
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108 | (1) |
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2.2.2 Reactions to the implementation |
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109 | (1) |
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2.2.3 EU law as an important instrument in easing the implementation of the Aarhus convention |
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109 | (1) |
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2.2.4 The need for further reform |
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110 | (1) |
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111 | (6) |
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112 | (1) |
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3.1.1 Including the public in decision making prior to the implementation of the Aarhus Convention |
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112 | (1) |
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3.1.2 The influence of national legislation on the Aarhus Convention |
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112 | (1) |
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113 | (4) |
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3.2.1 The right to public participation and the existing legal framework |
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113 | (1) |
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3.2.2 Reactions to the amendments |
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114 | (1) |
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3.2.3 Details of the participation procedures |
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115 | (1) |
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3.2.4 The extent of participation in German law |
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116 | (1) |
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3.2.5 The need for further reform |
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116 | (1) |
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117 | (9) |
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118 | (5) |
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4.1.1 The system of judicial review |
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118 | (1) |
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4.1.2 Access to justice by environmental NGOs |
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119 | (1) |
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4.1.3 Influence of national legislation on the Aarhus Convention |
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120 | (1) |
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4.1.4 Compatibility of German law with Art 9 para 2 of the Aarhus Convention |
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121 | (2) |
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123 | (17) |
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4.2.1 Openness of the existing legal framework for the right to access to the courts |
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123 | (1) |
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4.2.2 Reactions to the new provisions |
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124 | (1) |
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4.2.3 The need for further reform |
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125 | (1) |
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126 | (3) |
Chapter 5 The Aarhus Convention: A Force for Change in Irish Environmental Law and Policy? |
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129 | (2) |
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2 Status of Aarhus Convention in Irish law |
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131 | (2) |
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3 Access to environmental information |
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133 | (3) |
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4 Public participation in environmental decision-making |
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136 | (4) |
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5 Access to justice in environmental matters |
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140 | (9) |
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5.1 Irish legislative measures aimed at implementing Aarhus obligations |
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143 | (2) |
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5.2 Aarhus Convention in the Irish courts |
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145 | (4) |
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6 Conclusions and future directions |
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149 | (5) |
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154 | (5) |
Chapter 6 The Application of the Aarhus Convention in Italy |
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159 | (1) |
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2 Right to access to information |
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159 | (8) |
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2.1 Anticipating and implementing Aarhus and the EU rules |
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159 | (5) |
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2.2 The case law on the right of access |
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164 | (3) |
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167 | (5) |
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3.1 The general rules and their application to environmental cases |
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167 | (4) |
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3.2 Participation in EIA and SEA procedures |
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171 | (1) |
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172 | (8) |
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173 | (3) |
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4.2 The effectiveness of judicial review |
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176 | (3) |
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4.3 Non-judicial proceedings |
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179 | (1) |
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180 | (5) |
Chapter 7 The Aarhus Convention in the Netherlands |
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185 | (2) |
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187 | (5) |
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187 | (1) |
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187 | (5) |
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188 | (1) |
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189 | (2) |
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2.2.3 Substantive changes |
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191 | (1) |
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192 | (1) |
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2.2.5 Future developments |
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192 | (1) |
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192 | (5) |
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192 | (1) |
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193 | (15) |
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193 | (2) |
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3.2.2 Plans and programmes |
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195 | (1) |
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196 | (1) |
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197 | (5) |
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202 | (5) |
Chapter 8 Mimicking Environmental Transparency. The Implementation of the Aarhus Convention in Romania |
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207 | (1) |
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Reflection of the Aarhus Convention in the national legislation |
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207 | (1) |
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1 Right of access to documents/information |
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208 | (11) |
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208 | (1) |
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1.2 Scope of the right of access to information |
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209 | (1) |
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1.3 Duty to make some information generally available |
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210 | (1) |
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1.4 Format/manner in which environmental information is made generally available |
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211 | (3) |
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1.5 Bodies having the duty to provide information |
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214 | (1) |
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1.6 Exemptions from free access |
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214 | (4) |
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1.7 Costs for exercising the right of access |
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218 | (1) |
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219 | (7) |
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2.1 Different participation rules applicable to activities, to plans, programs and policies, and to normative instruments |
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219 | (1) |
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2.2 Purpose of participation |
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220 | (1) |
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220 | (1) |
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2.4 Timeframes for the different phases |
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221 | (4) |
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2.5 Utilization of the outcome of public participation |
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225 | (1) |
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226 | (7) |
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3.1 Administrative appeal. Alternatives to court proceedings |
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226 | (2) |
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228 | (1) |
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228 | (1) |
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229 | (2) |
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3.5 Effectiveness of judicial remedies; Legal aid |
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231 | (2) |
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4 Discussion of the main findings |
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233 | (8) |
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233 | (1) |
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234 | (7) |
Chapter 9 The Implementation and Influence of the Aarhus Convention in Spain |
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241 | (1) |
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2 First pillar: the right of access to information |
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241 | (6) |
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2.1 The pre-implementation phase: Early and limited acknowledgement connected to a defensive approach |
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241 | (2) |
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2.2 The post-implementation stage: Extensive development of this right through top-down influence |
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243 | (4) |
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3 Second pillar: public participation rights |
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247 | (15) |
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3.1 Pre-implementation phase: a legal tradition with long-standing practices |
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247 | (8) |
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3.2 Post-implementation phase: a paradoxical implementation with steps forward and steps backward |
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255 | (7) |
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3.2.1 Participation of the 'public concerned' |
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256 | (2) |
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3.2.2 Mode and scope of participation |
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258 | (2) |
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3.2.3 Time frames for participation |
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260 | (1) |
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3.2.4 Due account of the results of participation |
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261 | (1) |
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4 Third pillar: access to justice |
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262 | (11) |
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4.1 Pre-implementation phase: a long 'journey' towards the acknowledgement of a broad right of access to justice |
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262 | (5) |
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4.2 Post-implementation phase: an unsatisfactory implementation which amounts to a regressive step |
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267 | (6) |
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273 | (4) |
Chapter 10 United Kingdom |
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1 Access to environmental information |
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277 | (11) |
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277 | (1) |
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1.2 Routinely publishable information |
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278 | (1) |
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1.3 What does the public have the right of access to? |
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278 | (2) |
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1.4 The definition of public authorities |
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280 | (2) |
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1.5 How quickly must the information be provided? |
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282 | (1) |
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1.6 Exemptions to disclosure |
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282 | (3) |
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285 | (1) |
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1.8 What is in the public interest? |
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285 | (1) |
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1.9 Partial refusal and redaction of documents |
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286 | (1) |
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1.10 Appealing against refusals |
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286 | (1) |
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1.11 Charging for environmental information |
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286 | (2) |
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288 | (13) |
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288 | (1) |
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2.2 The effect of the Aarhus Convention |
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289 | (1) |
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2.3 Public participation in relation to specific activities (Article 6) |
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290 | (1) |
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2.4 Third party right of appeal |
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291 | (1) |
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291 | (1) |
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2.6 Public participation in relation to plans, programmes and policies relating to the environment (Article 7) |
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292 | (1) |
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2.7 The town and country planning system |
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292 | (3) |
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2.8 National infrastructure projects |
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295 | (1) |
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296 | (1) |
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2.10 Opportunities for participation in relation to normative instruments (Article 8) |
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296 | (3) |
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2.11 Are consultation processes effective? |
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299 | (1) |
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2.12 Case-Law on consultations |
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300 | (1) |
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2.13 The role of NGOs in decision-making |
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301 | (1) |
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3 Access to environmental justice |
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301 | (20) |
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301 | (1) |
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3.2 The System for decision-making and administrative appeals |
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302 | (1) |
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302 | (3) |
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3.4 Other routes to redress |
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305 | (1) |
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305 | (1) |
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3.6 Scotland and Northern Ireland |
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306 | (1) |
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307 | (1) |
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3.8 The effectiveness of JR as a remedy-"substantive and procedural legality" |
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308 | (2) |
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3.9 Costs in the environmental procedure |
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310 | (1) |
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310 | (1) |
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311 | (4) |
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3.11 Scotland and Northern Ireland |
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315 | (1) |
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3.12 Cross undertakings in damages and injunctive relief |
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315 | (1) |
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316 | (1) |
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317 | (4) |
Chapter 11 Towards a Common European Legal Culture under the 'First Pillar' of the Aarhus Convention |
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321 | (1) |
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2 The beginning: diversity in national legal rules and the legal culture on access to information |
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322 | (5) |
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2.1 Sweden, the Netherlands and France: Rules on access to information and the legal culture of openness |
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323 | (1) |
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2.2 Italy, the UK and Ireland: Some rules on access to environmental information and legal culture of secrecy |
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324 | (1) |
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2.3 Germany and Spain: no rules on access to environmental information and legal culture of secrecy |
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325 | (1) |
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2.4 Romania: Rules on access to information but legal culture of secrecy |
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326 | (1) |
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326 | (1) |
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3 The first step towards the creation of a common legal culture on access to environmental information: Directive 90/313/EEC |
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327 | (4) |
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3.1 Sweden, the Netherlands and France: no significant changes in law and legal culture of openness |
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327 | (1) |
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3.2 Italy, the UK and Ireland: broadening of legislation and enhancing the legal culture of openness |
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328 | (1) |
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3.3 Germany and Spain: creation of rules on access to environmental information and break with the legal culture of secrecy |
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329 | (1) |
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3.4 Romania: Even though not a Member State at the time, still enacting laws on access to information |
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330 | (1) |
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331 | (1) |
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4 The second step towards the creation of a common legal culture on access to environmental information: Aarhus Convention and Directive 2003/4/EC |
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331 | (12) |
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4.1 The creation of the Aarhus Convention and Directive 2003/4/EC |
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331 | (3) |
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4.2 The implementation of the rules of the Aarhus Convention and Directive 2003/4/EC |
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334 | (17) |
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4.2.1 Sweden, the Netherlands and France: little change in the legal framework and the legal culture on access to environmental information |
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335 | (2) |
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4.2.2 Italy, UK and Ireland: modifying rules and enhancing the legal culture on access to environmental information |
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337 | (3) |
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4.2.3 Germany and Spain: modifying rules and enhancing the legal culture on access to environmental information |
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340 | (2) |
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4.2.4 Romania: modifying rules but only modest impact on the legal culture on access to environmental information |
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342 | (1) |
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342 | (1) |
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5 A legal culture of openness at the Union level? |
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343 | (2) |
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6 Conclusion: Has a common European legal culture developed under the 'first pillar' of the Aarhus Convention? |
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345 | (4) |
Chapter 12 The Second Pillar of the Aarhus Convention and Beyond. Comparative Analysis of the Implementing Systems Vis-A-Vis their Legal Culture |
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349 | (2) |
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2 A participatory Convention and the threefold shift in mentality: political, diplomatic and legal |
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351 | (3) |
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351 | (1) |
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2.2 The shift in diplomatic relations |
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352 | (1) |
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352 | (2) |
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3 The Aarhus Convention Compliance: internal mechanisms and national outputs |
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354 | (16) |
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3.1 The Compliance Committee: a new participatory approach to monitor compliance |
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354 | (2) |
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3.2 The European Union: a good level of compliance due to the legal tradition |
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356 | (2) |
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358 | (12) |
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358 | (2) |
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3.3.2 United Kingdom: participation and political interests take it in turns |
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360 | (2) |
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3.3.3 Southern Europe: individualism and centralisation as obstacles to substantial change |
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362 | (1) |
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3.3.4 France: participatory rights in the tissue of representative democracy |
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363 | (2) |
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3.3.5 Germany: talking the talk and (not always) walking the walk |
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365 | (1) |
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3.3.6 The Dutch consensus culture: a stagnant "polder model"? |
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366 | (1) |
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3.3.7 Ireland: a lukewarm reception of the AC |
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367 | (1) |
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3.3.8 Romania: an initial acceleration followed by a sharp slowdown |
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368 | (1) |
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3.3.9 Recommendations for the "not-fully compliant" countries |
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369 | (1) |
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4 Reasons behind the delayed or poor compliance |
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370 | (1) |
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370 | (1) |
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5 Conclusion and way forward |
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371 | (4) |
Chapter 13 Access to Justice under the Aarhus Convention: the Comparative View |
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375 | (1) |
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2 Systems of remedies in different jurisdictions |
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375 | (6) |
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381 | (8) |
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383 | (2) |
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3.2 Standing for NGOs, groups and actio popularis |
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385 | (4) |
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4 The intensity and scope of the review |
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389 | (5) |
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5 Injunctive relief, damages |
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394 | (3) |
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397 | (4) |
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7 Conclusions: a mixed picture in need of unity? |
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401 | (6) |
Chapter 14 Environmental NGOs (eNGOs) or Filling the Gap between the State and the Individual under the Aarhus Convention |
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407 | (3) |
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2 The eNGOs in the Aarhus Convention. |
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410 | (3) |
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3 Environmental NGOs and EU law |
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413 | (18) |
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3.1 Rules applicable to the EU institutions |
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416 | (5) |
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3.1 Rules applicable to the public authorities of the Member States |
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421 | (10) |
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4 The role of eNGOs in selected Member States |
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431 | (3) |
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5 Comparative conclusions |
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434 | (9) |
Chapter 15 The Impact of the Convention of Aarhus on the Emerging European Legal Culture |
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443 | (1) |
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443 | (4) |
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3 The legal culture of the Aarhus Convention |
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447 | (3) |
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4 The Aarhus Convention's influence on European legal culture |
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450 | (4) |
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450 | (1) |
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451 | (2) |
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4.3 Effectiveness through environmental justice |
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453 | (1) |
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454 | (4) |
Table of Cases |
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458 | (8) |
Index |
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466 | |