OPINION OF THE COMMISSION pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on public access to environmental information AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the EC Treaty

2000/0169 (COD)

OPINION OF THE COMMISSION pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on public access to environmental information

1. Introduction

Article 251(2), third subparagraph, point (c) of the EC Treaty provides that the Commission is to deliver an opinion on the amendments proposed by the European Parliament at second reading. The Commission sets out its opinion below on the 47 amendments proposed by Parliament.

2. Background

- Date of transmission of the proposal to the European Parliament and Council (COM(2000) 402 final - 2000/0169 (COD)): 29 June 2000

- Date on which the European Commission gave its opinion at first reading: 14 March 2001

- Date on which the Economic and Social Committee adopted its opinion: 29 November 2001

- Date on which the Committee of the Regions adopted its opinion: 14 February 2001

- Date on which the Commission adopted its amended proposal - COM(2001) 303 final - 2000/0169 (COD): 6 June 2001

- Date on which Council adopted the Common Position: 28 January 2002

- Date on which the Common Position was received by the European Parliament: 6 February 2002

- Date on which the Commission communicated its view on the Common Position: 31 January 2002

On 30 May 2002 the European Parliament at its Second Reading adopted 47 amendments. The majority of the amendments of the European Parliament aim at further reinforcing the Commission proposal. Part of these amendments align the Commission proposal to the Aarhus Convention; a considerable number of amendments lay heavy obligations upon Member States and go beyond the Aarhus Convention. Other amendments specify in great detail the practical arrangements for providing the information.

3. Purpose of the 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.

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, by making EC legislation consistent with 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.

The central elements of the proposal are:

- To grant a right of access to environmental information 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 as well as a more detailed definition of public authorities;

- A shorter deadline of one month 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 interest 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 charges that 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.

4. Opinion of the Commission on the amendments by the European Parliament

On 30 May 2002 the European parliament adopted 47 amendments. 9 amendments can be accepted by the Commission in full [amendments 10, 22, 28, 30, 32, 33, 42, 45, 46]. 3 amendments can be partially accepted by the Commission [amendments 7 (3rd part), 9 (1st part), and 27 (3rd part)]. 3 amendments, fully or partially, can be accepted in principle [amendments 9 (2nd part), 19, 27 (2nd part)] subject to either rewording or reordering. The remaining amendments, fully or partially, cannot be accepted by the Commission [amendments 1, 2, 3, 4, 5, 6, 7 (1st and 2nd part), 8, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 23, 24, 25, 26, 27 (1st part), 29, 31, 34, 35, 36, 37, 38, 39, 40, 41, 43, 44 and 47]

4.1. Amendments accepted by the Commission

* The Commission accepts amendment, 7 (3rd part), that states that charges must be reasonable and that advance payment should not be required.

* The Commission accepts amendments 9, 45 and 46, reintroducing the Commissions proposed period of 4 years for evaluation of the Directive that was replaced in the Council Common Position by a 9 year period and obliging the Member States to report to the Commission within 4 years and 6 months after the entry into force of the Directive.

* The Commission accepts amendment 10, aligning the wording of the Directive to the wording of the Aarhus Convention.

* The Commission accepts amendment 22 clarifying that information must be easily accessible by the applicant.

* The Commission accepts amendments 27 (3rd part), 28, 30, 32, 33 and 42. These amendments deal with the exceptions laid down in Article 4, first and second paragraph, justifying refusal to give access to information. Amendment 27 (3rd part) introduces the obligation for public authorities, in case of a refusal of a request, to state the name of the person or authority preparing material and the estimated time needed for completion. In line with the Aarhus Convention, adds amendment 28 to the exception justified by confidentiality that the confidentiality must be required by national or Community law. Amendments 30 and 33 replace the obligation to disclose information on emissions that is relevant for the protection of the environment from Article 4, second paragraph subparagraph d) to Article 4, paragraph 2 second sentence. Amendment 33 also states that the grounds for refusal must be interpreted narrowly. Amendment 32 aligns the draft directive to the Aarhus Convention by stating that requests for access to environmental information can be refused for reasons of protection of persons supplying voluntarily information on condition that the information will not be given out. Amendment 42 then introduces textual changes into Article 7, paragraph 6, subparagraph 1 of the directive that are in line with the changes made to Article 4 of the draft Directive.

4.2. Amendments accepted in principle by the Commission

* Amendment 9 (2nd part) introduces in recital 21 that the evaluation of the Directive will be carried out after submission of the relevant reports of the Member States and that the evaluation report should be submitted to the European Parliament. The Commission accepts this amendment on condition that it will be clarified that the evaluation will be based not solely on these reports, but also on the experience gained in the application of the Directive. The text of the modified proposal would then be:

Recital 21

This Directive should be evaluated every four years after its entry into force in the light of the experience gained and after submission of the relevant reports by the Member States. It shall be subject to a review on the basis of such evaluation. The evaluation report should be submitted to the European Parliament and the Council.

* Amendment 19 introduces a new paragraph 2a to Article 2, clarifying that "Information held by a public authority" shall mean environmental information which has been received or produced by a public authority. The Commission can accept this amendment on condition that it will be introduced as a new paragraph 3 (a) to Article 2, where the Commission considers that it is better placed as Article 2, third paragraph defines already "information held for a public authority".

* Amendment 27 (2nd part) introduces into Article 4, paragraph 1, subparagraph c) the rule that the public interest served by disclosure shall be weighed against interest served by the refusal to disclose the information. The Commission can accept this amendment on condition that it will be introduced as Article 4, paragraph 2, dealing with possibilities for refusal in cases there disclosure of the information would adversely affect specific interests (for example: confidentiality of proceedings, international relations, commercial or industrial information).

4.3. Amendments rejected by the Commission

* The Commission can not accept amendment 1 introducing new text in Recital 2, as the Recital has no corresponding text in the articles of the Directive.

* The Commission can not accept amendments 2 and 11 that seek to make a reference to future developments in the area of information technology. This is not appropriate in legislation and the wording of the proposal already covers this, as it refers to "available" technology. The amendment has no practical or legal added value.

* The Commission can not accept amendments 3, 13, 14 and 15. These amendments introduce modifications into recital 10, Article 2, paragraph 1, subparagraphs c), d) and e) defining the concept of "environmental information", which deviate from the Aarhus Convention. The Commission considers that it is more appropriate to stick as closely as possibly to the definition of the Aarhus convention. Amendment 13 seeks to add to the definition of environmental information "reports on the implementation of environmental legislation" as well as activities affecting or likely to affect "directly or indirectly" the environment. Amendment 14 seeks to add to the definition of environmental information "financial" analyses and assumptions used within the framework of activities or measures affecting or likely to affect the environment (the terms "cost-benefit" and "economic" in the proposal already cover "financial"). Amendment 15 seeks to introduce into the definition of environmental information "food safety", which falls out of the scope of "environmental information". Amendment 3 introduces in Recital 10 the modifications corresponding to those introduced by Amendments 13, 14 and 15.

* The Commission can not accept amendments 4, 23, 24 and 25 that seek to specify in Recital 15 and Article 3, paragraph 5, in great detail the practical arrangements for providing the information, whereas the proposed Directive is a framework directive, which should give the Member States a certain degree of flexibility when transposing the directive into national law. Amendment 23 seeks to introduce into Article 3, paragraph 5, introductory part, a mandatory list of practical arrangements. Amendment 24 seeks to specify in great practical detail how publicly accessible lists of public authorities and registers are to be established. Amendment 25 seeks to add to the obligation for Member States to ensure that public authorities inform the public adequately of the rights they enjoy as a result of the Directive, the obligation to also provide information, guidance, advice and other assistance for individuals on matters concerning the authority's sphere of activity. Amendment 4 introduces in Recital 15 the modifications corresponding to those introduced by Amendments 23, 24 and 25.

* The Commission can not accept amendment 5 that seeks to introduce textual modifications that deviate from the wording of the Aarhus Convention. The Commission prefers to stick as closely as possible to the text of the Aarhus Convention.

* The Commission can not accept amendment 6 that seeks to introduce a new Recital 16 a) stating that information on emissions, discharges etc. cannot be withheld by virtue of protection of commercial, industrial and other information referred to in Article 4. However, in specific cases, it might be justified to withhold such information.

* The Commission can not accept amendment 7 (1st part) that seeks to introduce in Recital 18 the statement that the right of access to information is best served by free access. The Aarhus Convention recognises the right for public authorities to make reasonable charges.

* The Commission can not accept amendment 7 (2nd part) that seeks to enable public authorities to make charges for the supply of environmental information in copied or transcribed form. The proposed Directive is a framework directive, which should give the Member States a certain degree of flexibility when transposing the directive into national law.

* The Commission can not accept amendments 8, 41 and 44 that introduce a new recital 19a and a new Article 7a on the quality of information to be disseminated and that replace a paragraph from Article 7, paragraph 5 to the new Article 7a. These amendments go beyond the Aarhus Convention and are too burdensome for the public authorities. It is not up to the public authority to guarantee that the content of the information is of a good quality when the information originates from other sources than from the public authority itself. The proposed Directive is a framework directive, which should give the Member States a certain degree of flexibility when transposing the directive into national law.

* The Commission can not accept amendment 12 that seeks to add to Article 2, paragraph 1, subparagraph b) the words "nuclear fuel and energy", whereas this is already covered by the definition proposed by the Commission, which is in line with the Aarhus Convention.

* The Commission can not accept amendments 16, 17 and 18. These amendments introduce modifications into Article 2, paragraph 2, subparagraphs a) and c) defining the concept of "public authorities", which deviate from the Aarhus Convention and which are redundant. The Commission considers that it is more appropriate to stick as closely as possibly to the definition of the Aarhus convention. Amendment 16 seeks to introduce into Article 2, paragraph 2, subparagraph a) that public authorities, being government or other public administration also include advisory bodies. Amendment 17 seeks to replace the words "in relation to the environment" in Article 2, paragraph 2, subparagraph c by "relating directly or indirectly to the environment". Amendment 18 seeks to replace the wording of the Common Position "This definition shall not include bodies or institutions acting in a judicial or legislative capacity" by "Member States may provide that, in applying the provisions of this Directive concerning access to justice, the definition of 'public authority' does not include bodies when and to the extent that they act in a judicial or legislative capacity."

* The Commission can not accept amendments 20 and 21 that seek to reduce the one-month deadlines of Article 3, paragraph 2, subparagraphs a) and b) to 15 working days. General obligation in the draft Directive is that requests will be answered "as soon as possible" and in any case within one month. Reducing the one-month period is unduly burdensome for the public authorities and goes beyond the Aarhus Convention.

* The Commission can not accept amendment 26 that seeks to introduce into Article 4, paragraph 1, subparagraph b) an obligation for public authorities to assist applicants in formulating their request in case this was formulated in an unclear way. Even though the Commission can support the idea of this amendment, the Commission considers the text of its modified proposal more clear and therefore prefers to stick to that text.

* The Commission can not accept amendments 27 (1st part), 29 and 31, which introduce modifications into Article 4, paragraph 1, subparagraph c) and paragraph 2, subparagraphs b) and e) that deviate from the Aarhus Convention. Amendment 27 (1st part) deletes from Article 4, paragraph 1, subparagraph c) the possibility for public authorities to refuse access to internal documents, whereas this exception is foreseen in the Aarhus convention. Amendment 29 replaces in Article 4, paragraph 2, subparagraph b) "international relations" by "vital interests in international relations". Amendment 31 deletes Article 4, paragraph 2, subparagraphs e), foreseeing a refusal on the basis of protection of intellectual property rights, whereas this exception is foreseen in the Aarhus Convention.

* The Commission can not accept amendment 34 introducing a new article 4, paragraph 2a that introduces the obligation to draw up lists of criteria that will be applied when handling requests for information. This is unduly burdensome for the public authorities and goes beyond the Aarhus Convention.

* The Commission can not accept amendment 35 that seeks, on the one hand to alter the order of the different paragraphs of Article 5 on charges. The Commission considers the order of the Common position the more logical one: as a general rule, charges can be made, but consultation on the spot is free of charge (first point) then: in case a charge will be made, a schedule of such charges must be publicised and made available to the applicants (second point) and finally: access to public registers or lists of environmental information held by such authorities and by information points shall be free of charge. This is the system laid down in the Aarhus Convention and the Commission prefers to stick to that order. On the other hand, the amendment adds to the requirement that charges shall be reasonable, the limitation that the charge shall not exceed the actual cost of reproducing the material requested. This limitation goes beyond the Aarhus Convention and is unduly burdensome for public authorities.

* The Commission can not accept amendment 36 that seeks to add a new paragraph to Article 6 relating to access to justice. The amendment regulates the issue in great detail, whereas the proposed Directive is a framework directive, which should give the Member States a certain degree of flexibility when transposing the directive into national law.

* The Commission can not accept amendment 38 that seeks to widen the obligation laid down in Article 7, paragraph 2, subparagraph c, to the extent that not only environmental information in the form of progress reports on implementation must be disseminated, but that all such reports must be disseminated and not only to those prepared by public authorities. This is unduly burdensome for the public authorities and goes beyond the Aarhus Convention.

* The Commission can not accept amendment 43 that seeks to introduce into Article 7, paragraph 6 a new subparagraph 1a, introducing an obligation for public authorities to include, when refusing access, a reference to the document in question and to the exception that applies. This is unduly burdensome for the public authorities and goes beyond the Aarhus Convention.

* The Commission can not accept amendment 47 that seeks to reduce the deadline for implementation of the Directive from 2 years to one year. Such deadline is unduly burdensome for Member States.

5. Conclusion

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as set out above.