72 - The ACC’s findings in ACCC/C/2021/186 concerning Portugal – what does it tells us?

On 8 August 2025, the ACCC issued draft findings in ACCC/C/2021/186, these were then adopted by the ACC on 22 August 2025: ACCC/C/2021/186 Portugal | UNECE

An advanced edited copy was then published on 10 November 2025: ECE/MP.PP/C.1/2025/19.

At the 8^th Meeting of the Parties the findings were endorsed (unlike those in respect of the Brexit communication): see ECE.MP_.PP_.2025.36.E.pdf.

The communication alleged a failure by Portugal to comply with its obligations under articles 4 (1), (2), (3)(c) and (7) and 6 (3) and (4) of the Convention - concerning access to information and public participation.

The Communication relates to the proposed Barroso lithium mining project located in the municipality of Boticas.

The facts related to requests made to the Portuguese Environment Agency (“the APA”) and other public authorities namely the Directorate General of Geology and Energy (“DGEG”) and to the Norte Regional Coordination and Development Commission (“CCDR-N”). Requests were also made to the developer – Savanah Resources.

The mine was designated as a project of “strategic importance” by the EU Commission because the EU is seeking to secure supplies of critical raw materials: https://www.euractiv.com/news/portugal-denies-breach-of-un-convention-over-lithium-mine-project/. The lithium is needed for electric batteries. NGOs disputed the EU’s backing of the mine: https://www.clientearth.org/latest/press-office/press-releases/ngos-challenge-eu-commission-backing-of-controversial-lithium-mine-in-portugal/

There is an interesting article in the Guardian on this: https://www.theguardian.com/environment/2025/jun/21/lithium-mining-sacrifice-zone-portuguese-villagers-eu-energy-transition, “Covas do Barroso is among the first villages caught up in Europe’s efforts to green its economy. As the continent weans itself off fossil fuels that poison the air and heat the planet, demand for lithium is surging, to build batteries that can run electric vehicles and balance renewable-heavy power grids.” The need for the mine is said to be because “more than three-quarters of the world’s raw supply comes from just three countries: Australia, Chile and China” with 72% coming from China.

What do we take as key messages from the decision of the ACC and the reaction to it:

1. The ACCC seems to be functioning again – after years without any draft or final decisions, we have had two draft decisions (that I am aware of) in the last few months.
2. This Communication was lodged in May 2021, so draft findings by August 2025 is a pretty speedy decision for the ACCC. The other is the Brexit Communication: see blog 63 “Brexit is back!”.
3. The ACCC rejected an admissibility objection based on non-exhaustion of domestic remedies because what was in issue was “a systemic issue of non-compliance regarding access to environmental information in the Party concerned, and in particular a misuse of the exception for “materials in the course of completion.” This suggests a somewhat liberal approach to the exhaustion of domestic remedies requirement: see blog 43 “The Compliance Committee and the exhaustion of domestic remedies” where I urge the ACCC to take a a narrower view.
4. The ACCC made a lot of findings of non-compliance:

“A. Main findings regarding non-compliance

168. The Committee finds that: (a) Since APA failed to reply to the communicant’s information request of 7 January 2021 within one month, or to inform the communicant by that date of the need for an extension of this period up to two months together with the reasons for it, the Party concerned failed to comply with article 4(2) and (7) of the Convention; (b) Since in its refusal of the communicant’s access to environmental information request, APA failed to provide information on access to the review procedure provided for in accordance with article 9, the Party concerned failed to comply with article 4(7) of the Convention; (c) Since APA and CCDR-N deferred until the start of the public participation procedure the provision of the environmental information within the scope of the communicant’s requests dated 7 January and 14 March 2021, respectively, that APA and CCDR-N held at the time of the requests, the Party concerned failed to comply with article 4(2) in conjunction with article 4(3)(c) of the Convention; ECE/MP.PP/C.1/2025/19 20 (d) Since DGEG referred the communicant to APA even though DGEG held the requested information itself, the Party concerned failed to comply with article 4(1) in conjunction with article 4(5) of the Convention; (e) By maintaining a legal framework which allows a public authority which holds requested environmental information to refuse access to that information (i) until the decision is taken, or the case or proceeding is closed, or (ii) until one year has passed since the information was drawn up, whichever is the sooner, the Party concerned fails to comply with article 4(2) in conjunction with article 4(3)(c) of the Convention; (f) By not ensuring a reasonable time frame for the public to participate on the revised EIS and Mine Exploitation Plan, the Party concerned failed to comply with article 6(3) of the Convention; (g) By maintaining a legal framework under which revised EIA documentation is granted tacit approval if the public is given longer than 10 working days to comment on the revised documentation, the Party concerned fails to comply with the requirement in article 6(3) that public participation procedures include reasonable time frames for the public to prepare and participate effectively; (h) By failing to provide the public concerned with access from the start of the public participation procedure to all documents relevant to the decision-making on the Barroso mine project held at that time by the competent public authority, the Party concerned failed to comply with article 6(6) of the Convention; (i) By maintaining a legal framework that does not require all documents relevant to the decision-making held at that time by the competent public authority to be made accessible to the public concerned during the public participation procedure, the Party concerned fails to comply with article 6(6) of the Convention.

B. Recommendations

169. The Committee, pursuant to paragraph 36(b) of the annex to decision I/7 of the Meeting of the Parties, and noting the agreement of the Party concerned that the Committee take the measures requested in paragraph 37(b) of the annex to decision I/7, recommends that the Party concerned undertake the necessary legislative, regulatory, administrative and practical measures to ensure that: (a) Its legal framework is amended so that public authorities which hold environmental information cannot refuse access to that information on the grounds either that (i) the decision in the preparation of which the requested environmental information is involved has not yet been taken, or the cases or proceedings containing the requested environmental information have not been concluded, or (ii) one year has not yet passed since the environmental information was drawn up; (b) Its legal framework provides reasonable time frames for the public to prepare and participate effectively during decision-making on revised EIA documentation; (c) Its legal framework explicitly requires that all documents relevant to decision making subject to article 6 of the Convention held by the competent public authority are to be made accessible to the public concerned during the public participation procedure”

The reactions have been interesting:

1. “This decision proves our criticism of the evaluation process was never unfounded,”; “Carla Gomes of the local NGO Unidos em Defesa de Covas do Barroso (UDCB), calling for the APA’s 2023 Environmental Impact Statement to be annulled and the process to be restarted”: https://www.euractiv.com/news/portugal-denies-breach-of-un-convention-over-lithium-mine-project/
2. “APA dismissed the findings, insisting it did not breach the Aarhus Convention. “It is not a question of compliance with the EIA procedure, let alone the public consultation, but simply a divergent interpretation by the Convention Compliance Committee,” it told Euractiv.”: ibid.
3. The developer has also disputed the findings: https://www.mining.com/savannah-disputes-claims-portugal-hid-barroso-mine-data/

This blog post was written by James Maurici KC.

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; ACCC/C/2014/100 and 101; ACCC/C/2017/150. He is currently acting on the Free Trade Agreement Communication ACCC/C/2022/194. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Margherita Cornaglia - Margherita’s public law practice often involves acting in claims raising environmental and climate change related issues. For instance, she acted as junior counsel in the judicial review of the Government’s Third National Adaptation Programme (NAP3), pursued with an Aarhus costs cap, advancing novel arguments under Part 4 of the Climate Change Act. She also acted as junior counsel for community claimants in the Launders Lane litigation, challenging Havering Council’s refusal to designate Arnold’s Field as contaminated land; that claim likewise proceeded with Aarhus costs protection to secure effective participation and accountability. Beyond litigation, she has advised solicitors on the Government’s recent consultation concerning access to justice in relation to the Aarhus Convention, drawing on her broader practice representing NGOs and affected communities in environmental and climate cases.

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.

– Rebecca Sage - Rebecca is a junior tenant at Landmark Chambers with a growing practice in planning and environmental law. She is regularly instructed on matters engaging the Aarhus Convention, usually through the lens of judicial review. Rebecca has a developing interest in this complex and important area of the law and its implications for access to information, public participation in decision-making and access to justice.