Opinion of the Economic and Social Committee on the "Proposal for a Directive of the European Parliament and of the Council providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending Council Directives 85/337/EEC and 96/61/EC"

(2001/C 221/09)

On 14 February 2001 the Council decided to consult the Economic and Social Committee, under Article 175 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 10 May 2001. The rapporteur was Mr Braghin.

At its 382nd plenary session (meeting of 30 May 2001) the Economic and Social Committee adopted the following opinion with 109 votes in favour and 3 abstentions.

1. Introduction

1.1. The proposal in question is intended to promote the alignment of Community law with Articles 6 and 7 of the Aarhus Convention covering public participation in environmental decision-making and access to justice in environmental matters, thus enabling the Commission to meet its own international commitments and open the way to ratification of the Convention by the European Community.

1.2. These articles contain provisions on informing and consulting the public before decisions with an environmental impact are adopted: the proposal mentions a series of amendments to Directive 85/337/EEC ("the EIA Directive") on the assessment of the environmental impact of certain public and private projects, and to Directive 96/61/EC ("the IPPC Directive") on integrated pollution prevention and control, as regards the authorisation of categories of industrial activities listed in the relevant annex.

1.3. Action at Community level is deemed to be necessary to ensure that the procedures governing public participation in the environmental decision-making process are uniform in all Member States, leaving it to the Member States themselves to define the practical ways of implementing them.

1.4. Since all the Member States and the Community have already signed the Convention, the proposal should not give rise to additional costs for the Member States apart from those arising in any case from transposing the Convention's provisions into national law. However, there are likely to be costs connected with the more widespread dissemination of information, with the organisation and analysis of contributions (envisaged also in the form of opinions) deriving from public participation, and with possible consultation of the public through public-opinion surveys and subsequent publication of the decisions taken.

2. Comments

2.1. The Committee thinks the Commission is right to attach importance to providing the public with environmental information, first with its proposal to amend Directive 90/313/EEC(1) and now with the present draft directive on public participation in the drawing up of certain plans and programmes relating to the environment. The subject is highly important politically and has some technical and political content; the Commission has taken account of this in the specific amendments proposed for Directives 85/337/EEC and 96/61/EC to bring them into line with the content and spirit of the Aarhus Convention. This effort to achieve consistency and precision - including terminological precision - explains why in some respects the proposal goes beyond the content of the Convention, whereas in others it does not fully comply with it - see the points below.

2.2. The Committee agrees that it is necessary to align Community rules with the provisions of the Aarhus Convention as regards access to information (the first pillar - see above), public participation in the decision-making process (second pillar) and access to justice in environmental matters (third pillar) - aspects covered in the present draft directive - and endorses the effort to eliminate any legal disparities between the Member States and to define homogeneous procedures for action.

2.3. The Committee takes the view that the citizen has a right to information, which should be provided in the most appropriate manner and timescale, providing the public with a real, constructive participation instrument and avoiding unnecessary commitments and burdens for the public authorities and distortions in the performance of important economic activities. This aspect must be borne in mind when assessing the effectiveness of the proposed measures.

2.4. The definitions of "the public" and "the public concerned" given in Article 2, paragraphs 4 and 5 of the Aarhus Convention constitute an important step in the direction of harmonising the national systems. The Committee would however point out that the definition of the public concerned remains vague: those who have an interest in the said procedure. It is not specified that the interest must be direct and practical, and in every case recognised by national law.

2.5. The proposal envisages that non-governmental organisations which promote environmental protection and satisfy the requirements of national law should be deemed to have the interest referred to in point 2.4 above. The Committee regards the phrase "meeting any requirements under national law" as too generic, and suggests that a definition be found which links their participation to specific related environmental interests.

2.6. The Aarhus Convention, dealing with information in the context of public participation, calls for the safeguarding of legitimate interests such as the confidentiality of personal data and of commercial and industrial information, intellectual property rights, and the need for consent to the dissemination of information if the party concerned is not bound by existing rules to make them public (Articles 6(6), 4(3) and 4(4) of the Convention). The proposal does not deal with these aspects under the heading of dissemination of environmental information, and the Committee takes the view that it is desirable to safeguard such interests without going beyond the limits properly set by the Convention(2).

2.7. The Committee agrees that it would be desirable to include(3) an obligation upon Member States to set up, as part of their national law, a procedure for appeals to a judicial body or another body set up by law; such a procedure must be rapid and not over-burdensome, with fixed, short deadlines. Given that principles and conditions for access to justice in environmental matters arising from decisions by public authorities already exist in national legal systems, the Commission should make proposals for greater harmonisation of national provisions.

2.7.1. The proposed directive lays down an indisputable right to contest the legitimacy (in substance or procedure) of any decision or act, for any body or person affected (or potentially affected) by the authorisation procedure (Article 2.1) or by the decision-making procedure relating to the issuing or updating of the authorisations or their conditions (Article 3.1 b.14). The present wording of the proposal therefore allows someone whose right to participate in the procedure has not been respected to appeal, not only to contest a procedural error but also to contest the substantive legitimacy of the procedure. It follows from this that in operational terms it could encourage appeals intended solely to slow down administrative procedures, with increased costs and an unjustified resort to legal disputes.

2.7.2. According to accepted legal principles, the opportunity to contest the substantive legitimacy of an act must be guaranteed for anyone wishing to protect specific rights safeguarded by law; it must not be confused with the possibility of appeal on procedural grounds, or on grounds of neglect. The Commission proposal should therefore distinguish clearly between cases of access to justice to contest procedural legitimacy from cases relating to substantive legitimacy.

2.8. The Committee recognises the desirability of taking into account the problem of public information and participation with regard to decisions which can have cross-frontier effects, although this is not covered by the Aarhus Convention. In order to be practicable, the proposal should lay down the principle of balance between the various legitimate interests involved, so as to avoid any abuse of this instrument on the basis of presumed cross-frontier environmental effects, at the expense of the social and economic interests of the country where the decision must be taken or the authorisation granted, and so as to clarify the problem of languages and translation costs, thereby avoiding excessive costs and time-lags. The Committee thinks it desirable for the Commission to receive periodic reports from Member States on the implementation of this provision.

2.8.1. The Commission is called upon to ensure that, in the context of the enlargement negotiations, the public's right to information and participation in plans and programmes relating to the environment is guaranteed, in accordance with the terms of the directives currently being amended, and in particular to ensure that there is an effective procedure for dealing with cross-border problems.

2.9. The assessment criterion for substantial modification and/or enlargement of a plant or a production process, as expressed in Article 3(1)(a), is not sufficiently clear and can give rise to confusion. It would be more logical to maintain the definition of substantial modification given in Article 2 of Council Directive 99/13/EC of 11 March 1999 on limiting the emissions of volatile organic compounds (VOCs), which relates inter alia to plant coming within the scope of Directive 96/61/EC.

Brussels, 30 May 2001.

The President

of the Economic and Social Committee

Göke Frerichs

(1) COM(2000) 402 final of 29.6.2000, on which the ESC gave its opinion on 29 November 2000 (CES 1408/2000 in OJ C 116, 20.4.2001, p. 43).

(2) ESC Opinion on the Proposal for a Directive of the European Parliament and of the Council on public access to environmental information, CES 1408/2000 - 2000/0169 (COD), 29 November 2000, in OJ C 116, 20.4.2001, p. 43.

(3) As an Article 10a in Directive 85/337/EEC and as an Article 15a in Directive 96/61/EC.