Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on public access to environmental information. (presented by the Commission pursuant to Article 250 (2) of the EC-Treaty)

On 14 March 2001, the European Parliament voted in first reading on the amendments tabled on the Commission proposal for a Directive of the European Parliament and of the Council on public access to environmental information (COM(402) final of 29 June 2000.

Article 250(2) of the EC Treaty states that as long as the Council has not acted, the Commission may alter its proposal at any time during the procedures leading to the adoption of a Community act.

The Commission hereafter gives its opinion on the amendments adopted by the European Parliament.

1. BACKGROUND

Transmission of the proposal to the Council and to the European Parliament (COM(2000) 402 final) accordance with Article 175 (1) of the EC Treaty 29 June 2000

Opinion of the Economic and Social Committee 29 November 2000

Opinion of the Committee of the Regions 15 February 2000

2. OBJECTIVE OF THE COMMISSION PROPOSAL

The proposal for a Directive of the European Parliament and of the Council on public access to environmental information will replace Council Directive 90/313/EEC, of 7 June 1990, on the freedom of access to information relating to the environment. It was prepared in accordance with Article 8 of that Directive which calls upon the Commission to submit any proposal fore revision it may consider appropriate in the light of the experience gained in the operation of the directive. A report of the Commission to the European Parliament and to the Council on the experience gained in the application of Directive 90/313/EEC accompanied the proposal (COM(2000) 400 final of 29 June 2000).

The aim of the proposal is three-fold:

1. To correct the shortcomings identified in the practical application of Directive 90/313/EEC;

2. To pave the way towards the ratification by the European Community of the UN/EC Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the so-called Aarhus Convention), signed in 1998, through the alignment of the proposal to the relevant provisions of the Convention.

3. To adapt Directive 90/313/EEC to developments in information and communication technologies reflecting thereby the changes in the way information is created, collected, stored and transmitted.

Due to the numerous amendments to Council Directive 90/313/EEC proposed, it was considered appropriate, in the interest of increased transparency and legal certainty, to replace it rather than to amend it. This way of proceeding will provide interested parties, and in particular the public in general with a single clear and coherent legislative act. However, existing acquis is not open to discussion.

The central elements of the proposal are:

- To grant a right of access to environmental information (instead of the freedom of access in Directive 90/313/EEC) and to ensure that environmental information is made available and disseminated to the public in particular by means of the new information and communication technologies;

- A wider definition of environmental information than the one laid in Directive 90/313/EEC as well as a more detailed definition of public authorities;

- A shorter deadline of one month (instead of two in Directive 90/313/EEC) within which public authorities have to supply the requested information to applicants;

- The scope of the exceptions for refusing information has been further clarified. Access to information may only be refused if disclosure of the information will adversely affect the interests protected by the exception. The public interest served by the disclosure of the information has to be weighed against the interested served by the exceptions. Access to the information shall be granted if the public interest served by disclosure outweighs the interest protected by an exception;

- Detailed provisions on charged which may be requested by public authorities for supplying the requested information are also included. The supply of the information cannot be made subject to the advance payment of a charge;

- Two types of review procedures (an administrative procedure as well as a judicial procedure) to challenge acts or omissions of public authorities in relation to a request for access to environmental information have been provided for;

- The proposal includes detailed provisions on the so-called active supply of information by public authorities, that is, information to be disseminated spontaneously by public authorities, in particular by means of available information and communication technologies;

- A revision of the directive should take place 5 years after the deadline for transposition into national law. The revision should take into account the findings of the reports from the Member States on the experience gained in the practical application of the directive.

3. COMMISSION OPINION OF THE AMENDMENTS ADOPTED BY THE EUROPEAN PARLIAMENT

On 14 March 2001, the European Parliament adopted all 30 amendments tabled.

The Commission accepted partially amendments 1 (2nd and 3rd parts), 11 (3rd and 4th part), 15 (8th and 10th parts), 19 (3rd part), 21 (7th part) 24 (the reference to Article 3(5) and 2nd part), 25 (1st and 2nd parts), 26 (3rd part, 4th part on environmental agreements) and 28 (3rd part).

Amendments 13 (1st part), 17, 19 (6th part), 20 (2nd and 3rd parts), 21 (1st and 6th parts), 23 (2nd part), 24 (last part) were accepted in principle but subject to either rewording or reordering.

Amendment 3 was accepted in full.

Amendments 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 16, 18, 22, 27, 29 and 30 were not accepted.

The Commission's position with regard to the amendments of the European Parliament is as follows.

3.1 Amendments accepted in full by the Commission

The Commission can accept amendment 3 as it enables full alignment of the proposal with the Aarhus Convention.

3.2 Amendments partially accepted by the Commission

The Commission can accept parts 2 and 3 of amendment 1 on recital 1 of the proposal which, as a result, would read as follows:

"Increased public access to environmental information held by or for public authorities promotes a free exchange of view and comprehensive information and is essential to ensure good administration, trust and confidence in public authorities and the democratic participation of citizens, with a view to ensuring that Community legislation in this area is fully and effectively implemented, to increasing awareness of environmental matters and to improving environmental protection and the quality of the environment throughout the Community".

The Commission can also accept parts 3 and 4 of amendment 11 on recital 21 which, as a result, would read as follows:

" Public authorities should be able to make a charge for supplying environmental information but such a charge should not exceed a reasonable amount. It should furthermore not exceed the actual cost of reproduction and should not include the cost of staff time spent on searches. In this connection, a schedule of charges should be published and made available to applicants, together with information on the circumstances in which payments may be required or waived. Advance payments should not be required."

The part of amendment 15 on Article 2(1) (b) is also acceptable and would read as follows:

"factors, such as substances, energy, noise, radiation or waste, including radioactive waste, affecting or likely to affect the elements of the environment referred to in (a) or human health and safety"

The part of amendment 15 on Article 2(2) (c) is equally acceptable and would read as follows:

"any legal or natural person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment".

In order to ensure consistency, recital 12 of the Commission proposal should be deleted

The Commission can also accept the part of amendment 15 on Article 2(3) new which, as a result, would read as follows:

"Information held by a public authority" shall mean environmental information which has been received or produced by a public authority".

The part of amendment 19 on Article 3(5) is also acceptable and would thus read as follows:

"For the purposes of this Article, Member States shall define the practical arrangements under which environmental information shall be effectively made available. These practical arrangements may include at least:"

The part of amendment 21 on the closing clause is also acceptable to the Commission. The following sentence should therefore be added to the beginning:

"The above-mentioned grounds for refusal to disclose information shall be interpreted in a restrictive manner".

The Commission can also accept partly amendment 24 on Article 5(1) which, as a result, would read as follows:

"Public authorities may make a charge for supplying any environmental information but such a charge may not exceed a reasonable amount. It shall not exceed the actual cost of reproducing the information requested and shall not include the costs of staff time spent on searches. The supply of any information shall not be made subject to the advance payment of a charge".

The part of amendment 24 on Article 5(3) is also acceptable and would therefore read as follows:

"Access to public registers or lists established an maintained as mentioned in Article 3(5) shall be free of charge". The rest of the paragraph would remain unchanged.

The parts of amendment 25 relating to paragraphs 1 and 2 of Article 6 can also be accepted. They would therefore read, respectively, as follows:

"Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5, has access to a procedure before a court of law or other independent and impartial body established by law in which the acts or omissions of the public authority concerned may be reviewed.

In addition to the review procedure before a court of law or other body which is referred to in paragraphs 1 above, Member States shall ensure that an applicant has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that public authority or reviewed administratively by another independent and impartial body established by law; any such a procedure shall be expeditious and either free of charge or inexpensive."

The Commission can also accept the parts of amendment 26 dealing with Article 7(1) second sentence and (f) new which would therefore read as follows:

"The information to be disseminated by public authorities shall at least include:

(f) environmental agreements".

The part of amendment 28 dealing with Article 8 (1) of the Commission proposal is also acceptable and would read as follows:

"Not later than one year after the adoption of this Directive, the Commission shall forward to the Member States a guidance document setting out clearly the manner in which it wishes the Member States to prepare their reports".

3.3 Amendments accepted in principle by the Commission

The Commission can accept the proposal of the European Parliament that the directive should be revised four years (instead of 5 in the Commission proposal) after the deadline for transposition of the directive by Member States into national law in amendment 13. Recital 24 of the proposal would therefore read as follows

"This Directive should be subject to a review in the light of experience four years after the deadline for implementation".

In order to ensure consistency, Article 8(1) of the proposal should be amended accordingly and should read as follows:

"Not later then (insert the date which is four years after the date referred to in Article 9), Member States shall report on the experience gained in the application of the Directive".

The Commission can also accept in principle the objective of amendment 17. However, the Commission believes that this amendment would be better serve its purpose if it was placed at the end of Article 4(1) (b). The Commission can also accept in principle the part of the amendment 20 dealing with Article 4(1) (b) of the proposal which, as a result of the acceptance of these parts of the amendments would read as follows:

"the request is manifestly unreasonable or formulated in too general a manner. Where a request for information is formulated in too general a manner, the public authority concerned shall ask the applicant to clarify it and shall assist the applicant in doing as soon as reasonably practicable after the receipt of the request".

The Commission can also accept the part of amendment 19 which seeks to introduce a new sentence to the last paragraph of Article 3(5). However, the Commission believes that this amendment would better serve its purpose if it was placed in Article 3(5) (c) new, and if it was reworded in order to take into account of the wording of the Aarhus Convention so that it would read as follows:

"requiring officials to support the public in seeking access to information".

The part of amendment 20 which seeks to require public authorities to weigh the interests at stake when the apply the exception provided for under Article 4(1) (c) of the proposal is acceptable in principle provided that a reference to Article 4(1) (c) is added to Article 4(2) last sentence which would therefore read as follows:

"The above-mentioned grounds for refusal to disclose information shall be interpreted in a restrictive manner" (see amendment 21 under 3.2) "In each case mentioned under Article 4 (1) (c) and (2) (a) to (g), the public interest served by the disclosure shall be weighed against the interest served by the refusal. Access to the requested information shall be granted if the public interest outweighs the latter interest. Within this framework, and for the purposes of the application of (f), Member States shall ensure that the requirements of Directive 95/46/EC are respected".

Consequently, the last sentence of Article 4(1) (c) reading "in each such case, the public interest served by the disclosure shall be taken into account" should be deleted.

The Commission can also accept in principle the part of amendment 21 dealing with Article 4(2) (a) provided that it is reworded as follows to ensure alignment with the Aarhus Convention:

"the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law".

The Commission can also accept the part of amendment 21 dealing with Article 4(2) (g) provided that it is reworded as follows to ensure alignment with the Aarhus Convention:

"the interests of a third party which has supplied the information requested without that party being under or capable of being put under a legal obligation to do so, and when that party does not consent to the release of the information"

The Commission can accept in principle the part of amendment 23 which seeks to require public authorities making use of Article 4(1) (c) to supply applicants with the name of the official completing the information requested and the estimated timetable for its completion provided that it is placed in the latter Article. It would therefore read as follows:

"the requests concerns material in the course of completion or internal communications. In the first case, the name of the official or of the public authority completing the material requested and the estimated time needed for its completion shall, wherever practicable, be provided".

The Commission can also accept in principle the last part of amendment 24. However it considers it does not need to be repeated again as the ideas in this amendment are already included in the part of amendment 24 dealing with Article 5(2) of the proposal.

3.4 Amendments not accepted by the Commission

The first part of amendment 1 and amendment 2 cannot be accepted as they have no corresponding articles in the body of the text.

The Commission cannot accept amendment 4 which seeks to include a reference to future developments in the area of information and communication technologies. The Commission is of the view that it is not appropriate to refer in a legislation measure to technology that does not yet exist. The future review of the directive will take into account any possible development that may take place in the meantime. Furthermore, it will be recalled that the proposal refers to "available" technology. This is sufficient to cover the concern behind the amendment.

The main aim of amendment 14 is to add an additional objective to those pursued by the proposal, that is, to establish the standards in relation to public access to environmental information that should apply to EC institutions. This amendment cannot be accepted as it falls clearly outside the scope of the directive which applies only to Member States.

Amendment 15 deals with the definitions laid down in the proposal. The parts of the amendment dealing with the definition of "environmental information" cannot be accepted. One of the main objectives of the proposal is to enable ratification by the European Community of the Aarhus Convention. In order to ensure consistency, definitions should be kept as closely as possible to the ones laid down in the Convention. For the same reasons, amendment 5 which deals with the corresponding recital cannot be accepted.

Amendments 16 and 30 which seek to replace the one month/two months (for complex requests) deadlines to supply the information requested by a two weeks/six weeks (for complex cases) deadline are not acceptable. In the Commission's view, two weeks and 6 weeks for complex requests are too short deadlines. Amendment 6 dealing with the corresponding recital cannot be accepted as the modification requested is not reflected in the corresponding article in the body of the text.

Amendment 18 seeks to require public authorities to supply the information in the form or format requested by the applicant without exceptions. The Commission cannot accept this amendment. Public authorities should be granted a certain degree of flexibility to decide in which form or format the information should be supplied. It has to be acknowledged that compliance with certain requests could be too burdensome for public authorities. For the same reasons, amendment 7, which deals with the corresponding recital, cannot be accepted.

Amendment 19 defines in excessive details the practical arrangements under which the information shall be made effectively available to applicants. The Commission cannot accept most of this amendment as, in accordance with the subsidiarity principle, it is up to the Member States and not to the Commission to define the practical arrangement. This is a framework directive. Member States should be granted a certain degree of flexibility when they transpose the directive into national law. For the same reasons, amendment 8, which modifies the recital relating to this provision, cannot be accepted.

Amendment 20 deals with the so-called formal grounds for refusing access to environmental information. For reasons of consistency, the Commission cannot accept the first part of the amendment. Indeed, no similar amendment has been tabled in relation to the so-called substantive grounds for refusal.

The Commission cannot accept the part of amendment 20 which seeks to delete the exception which enables public authorities to refuse access to internal communications. This exception is foreseen in the Aarhus Convention. In certain cases, public authorities should be entitled to refuse access to specific internal documents.

Amendment 21 deals with the so-called "substantive" grounds for refusing requests for access to environmental information. The Commission cannot accept the parts of the amendments which seek to depart from the exhaustive list of exceptions provided for in the Aarhus Convention. It will be recalled that the Commission proposal is in line with the Aarhus Convention. Furthermore, access to the requested information will only be refused if disclosure adversely affects the interests protected by the exceptions and after having weighed the interests at stake. If the public interest in disclosure outweighs the interest protected by the exception, access to the information requested will be granted. The Commission therefore believes that the proposal provides sufficient guaranties to avoid abusive refusals to disclose information.

For the reasons above, the Commission cannot accept the part of the amendment 21 which seeks to prevent public authorities from invoking any of the exceptions provided for to refuse access to information on emissions, discharges and other releases into the environment. In certain cases, public authorities should be able to refuse access to such information, provided that all the requirements laid down in the proposal are met. It will be recalled that the Commission proposal already prevents public authorities to refuse access to information on emissions, discharges and other releases into the environment which are subject to Community law.

The Commission can neither accept the part of amendment 21 which seeks to delete the exception dealing with the intellectual property rights.

The Commission cannot accept the part of amendment 21 which seeks to delete of the reference to Directive 95/46/EC on personal data. For the sake of clarity and legal certainty it is appropriate to mention existing Community law in this area.

Amendment 22 seeks to require Member States to draw up a list of criteria for the purposes of the application of the exceptions. Such list should be communicated to the Commission for approval. The Commission cannot accept this amendment. It is up to the Courts and not to the Commission to give an interpretation of the exceptions provided for in the proposal.

Amendment 23 seeks to introduce the so-called positive silence (i.e. failure to provide the requested information within the deadline laid down in the proposal shall be deemed positive reply). The Commission cannot accept this amendment. The proposal already foresees applicants may make use of the redress mechanisms provided for in cases of failure to reply within the deadline.

The Commission can neither accept the last part of amendment 23 which seeks to require public authorities to disclose information provided on a voluntary basis by a third party in such a way that it will respect the anonymity of that third party. This amendment is not fully compatible with the Commission proposal which entitles public authorities to refuse access to information if disclosure would adversely affect the interests of third parties having supplied information on a voluntary basis.

The part of amendment 24 which seeks to alter the order of the paragraphs of the Commission proposal has no real added value. Therefore, the Commission prefers to stick to its own proposal.

The Commission cannot accept the part of amendment 24 which seeks to prevent public authorities form making charges when the information is requested for educational use. The Commission proposal already enables Member States to define when the cases when charges could be waived. This is after all a proposal for a framework directive. In accordance with the subsidiarity principle, Member States should be granted a certain degree of flexibility to transpose the directive into national law.

The parts of amendment 25 which seek to add to new paragraphs to Article 6 of the Commission proposal on access to justice cannot be accepted as they seek to regulate this issue in excessive detail. In accordance with the subsidiarity principle, the definition of these matters should be left to the Member States taking into account the specificity of their national legal systems.

The parts of amendment 26 which have not been accepted in part or in principle tend to define in excessive detail the way in which Member States should actively disseminate to the general public the environmental information they hold. Therefore they are not acceptable. The aim of this Article of the Commission proposal is to lay down a general obligation upon Member States to actively disseminate environmental information. However, the directive is a framework directive which does not aim at regulating in all detail how Member States should comply with this obligation. The Commission is of the view that a certain degree of flexibility should be granted to the Member States to transpose the directive into national law.

Amendment 27 seeks to include a new article in the proposal dealing with the quality of the information to be actively disseminated by public authorities to the general public. It furthermore requires the Commission to present proposals relating to the harmonisation of emissions measurement procedures. The amendment is not acceptable as it is unduly burdensome on public authorities. Furthermore, parts of the amendment fall outside the scope of the proposal. For reasons of consistency, amendment 12, which introduces into the proposal a recital relating to the new provision referred in amendment 27, cannot be accepted.

Amendment 28 seeks on the one hand to require Member States to draw up national reports on the experience gained in the application of the directive and to communicate them to the Commission on specific dates (i.e. 31 December 2005 and 30 June 2006). The amendment is not acceptable, as it is not yet known when the directive will be formally adopted. It is more prudent to stick to the Commission wording ("x" years and "x" years and 6 months after the deadline for transposition).

On the other hand, it requires the Commission to draw up a report on the experience gained in the application of the directive and of the Regulation implementing Article 255 of the Treaty (right of access to documents of the European Parliament, the Council and the Commission) together with any proposals for review which it may consider appropriate. This amendment is not acceptable as the reference to the Regulation implementing Article 255 of the ECT falls clearly outside the scope of the directive.

Amendment 29 seeks to lay down a 12 months deadline for the Member States to transpose the directive into national law. The Commission considers that this deadline is too short. For this reason, amendment 29 is not acceptable.

3.5 Amended proposal

Having regard to Article 250 (2) of the EC Treaty, the Commission modifies its proposal as indicated above.