Opinion of the Economic and Social Committee on the "Proposal for a Directive of the European Parliament and of the Council on public access to environmental information"

(2001/C 116/09)

On 25 July 2000 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 15 November 2000. The rapporteur was Mr Braghin.

At its 377th plenary session (meeting of 29 November 2000) the Economic and Social Committee adopted the following opinion with 107 votes in favour and one abstention.

1. Introduction

1.1. The proposal for a directive is not confined to amending Directive 90/313/EEC, but is intended to replace it in the interests of greater transparency, with a three-fold aim:

- to correct the shortcomings identified in the application of Directive 90/313/EEC;

- to pave the way towards the ratification by the European Community of the UN/ECE Convention ("the Århus Convention") signed on 25 June 1998;

- to adapt Directive 90/313/EEC to developments in information technologies.

1.2. Article 2 of the EC Treaty provides that the Community shall have as one of its tasks the promotion of a high level of protection and improvement of the quality of the environment, contributing to the pursuit of the following objectives:

- preserving, protecting and improving the quality of the environment;

- protecting human health;

- prudent and rational utilisation of natural resources;

- promoting measures at international level to deal with regional or world-wide environmental problems.

1.3. Giving the public access to environmental information held by the public authorities is essential to achieve these aims: a better informed public is able to exercise more effective control of public authorities as they carry out their duties in the environmental field.

1.4. Action at Community level is required owing to the transfrontier dimension of environmental problems, to ensure that the basic terms and conditions of the right of access to environmental information are evenly applied across the Community, and to comply with the international commitments the Community undertook in signing the Århus Convention (which can be ratified only when EC legislation has been aligned with it).

1.5. The proposed revision seeks to define the minimum conditions and methods for improving the exercise of the right of access to environmental information for the whole Community, and for placing it systematically at the public's disposal, but leaves it to the Member States to define the relevant practical arrangements.

1.6. The proposal involves a commitment by Member States to make available and disseminate environmental information to the general public as a matter of course, particularly through the use of computer telecommunication and/or electronic technologies.

1.7. Experience shows that a more proactive approach generates more requests from the public, and hence higher operational costs for the national authorities. However, the national reports on the application of the legislative, administrative and regulatory provisions needed for conformity with Directive 90/313/EEC show that applying them did not give rise to serious financial problems. It can therefore be supposed that adopting the current proposal would not have significant financial consequences, since much of the environmental information in question is already covered by the existing rules, and since in any case all the Member States, as signatories of the Århus Convention, are committed to making environmental information available and accessible in broader areas than those covered by Directive 90/313/EEC.

1.8. The proposal would oblige the Member States to make more use of modern means of telecommunication to disseminate the information to the public, which would certainly involve an initial increase in capital-account expenditure, but probably a reduction in subsequent costs of processing requests for information. It should also be noted that the Member States are encouraging the general use of modern computer technology, which can without much difficulty be used to publicise and disseminate environmental information.

1.9. The scope of the proposal is extended to other bodies outside the public sector which provide services of general economic interest relating to the environment. Since most of them were formerly in the public sector (and therefore already subject to the obligations of Directive 90/313/EEC) or are the successors of authorities or bodies which were subject to such obligations, the proposal should not involve a significant increase in costs for such bodies.

2. General comments

2.1. The Committee welcomes the Commission's intention to accede to the Århus Convention and endorses the Commission's proposal, subject to the comments below. It hopes that the Commission will consolidate or amend as soon as possible those directives which already define some types of environmental information.

2.2. The aim of the proposal - to guarantee a right of access to the environmental information held by the public authorities or on their behalf, and to define the basic arrangements and conditions for such access - constitutes a significant step forward, fully endorsed by the Committee, since it affirms an authentic right and not just freedom of access to information (as laid down in Directive 90/313/EEC), through the guarantee that environmental information shall be systematically made available and disseminated to the general public, including through the use of computer telecommunication and/or electronic technology.

2.3. The definition of "environmental information" is extended to cover:

- the state of the elements of the environment, such as landscape and natural sites, biological diversity and its components, including genetically modified organisms;

- factors, such as substances, energy, noise, radiation or waste, likely to affect the elements of the environment and/or human health and safety;

- emissions, discharges and other releases into the environment;

- measures (including administrative measures), likely to affect or designed to protect the elements of the environment;

- cost-benefit and other economic analyses used within the framework of the measures and activities likely to affect the environment;

- the state of human health and safety and conditions of human life (covered by one of the objectives of Community environmental policy under Article 174 of the Treaty).

2.3.1. This extension of guarantees and of the definition effectively completes the system of public environmental information already laid down in the regulation setting up the European Environment Agency and in many Community rules, such as:

- Directive 97/11/EC (replacing 85/337/EEC) which lays down that, when adopting a decision on projects with a significant environmental impact, the relevant authorities shall inform the public through appropriate procedures;

- Directive 88/610/EEC, amending Directive 82/501/EEC (known as Seveso I Directive) for activities carrying a significant risk of accidents, which lays down the precise content of information to be made available to the public;

- Directive 96/82/EC on monitoring accidents connected with specific dangerous substances (known as Seveso II Directive), which reaffirms the obligations set out above;

- EEC Regulation 1836/93 on the European system of eco-management and eco-audit, which provides for an "environmental declaration" containing a set of information, including a compendium of quantitative data on polluting emissions;

- Directive 96/61/EC on integrated prevention and reduction of pollution, which obliges the Member States to make accessible all requests for authorisation for new plant and changes to plant before the decision is taken, as well as the authorisation granted and the results of monitoring discharges.

2.3.2. The Committee endorses the proposal to broaden the definition of "environmental information" and in particular the reference to the state of human health and safety, which has been its constant concern in many earlier opinions, as well as the explicit reference to genetically modified organisms and to radiation.

2.4. Article 6 of Directive 90/313/EEC lays down that the Directive shall also apply to bodies with "public responsibilities for the environment" and under the control of public authorities - a concept which has given rise to conflicting interpretations. It has now been broadened to "functions or services which relate indirectly to the environment as well as those directly relating to it". This makes it possible to include services traditionally performed by the public sector but now provided by private-sector bodies.

2.4.1. The scope of the Directive also extends to legal persons responsible, by law or on the basis of agreements with other public authorities, for carrying out services of general economic interest which affect or can affect the environment. This eliminates the contested interpretations linked with the previous wording, and should avoid a situation where privatisations in the services sector lead to a reduction in the environmental information available to the public.

2.4.2. The Committee takes the view that the definition adopted is clear enough, although the subject of lively debate among the Member States, and calls for the broadest possible interpretation of the concept of responsible legal persons; it agrees that such an extension of Directive 90/313/EEC is desirable, although it will involve practical difficulties of implementation and will mean changes in the mode of interaction between public authorities and those responsible for services of general economic interest which affect or can affect the environment.

2.5. The present proposal goes beyond certain restrictive interpretations of the right of access to information, by clearly laying down that any applicant, whether a natural or a legal person, does not have to "demonstrate" his interest but simply declare it.

2.6. The authority must provide the requested information as soon as possible and within a reasonable time, at the latest within one month (previously two months), and not simply give a provisional reply. It must provide the information in the form or format requested, and provide copies of documents, unless they are already publicly available in a different form or format, or unless there are good reasons for providing it in a different way.

2.6.1. The Committee agrees in general that it is desirable to reduce response times, but not at the expense of completeness and adequacy of information; in the Committee's view this means a level of detail corresponding to the needs of the public and/or the requester, the guarantee of confidentiality required to safeguard personal privacy and commercial or industrial information, and the active provision of information at the right time to assist the decision-making process while avoiding risks of exploitation.

2.7. The Member States will define the practical arrangements under which environmental information is effectively made available. These may include:

- the appointment of information officers;

- the establishment and maintenance of facilities for the examination of the information requested;

- publicly accessible lists of public authorities and registers or lists of the environmental information held by such authorities and information points.

The Committee suggests that every Member State should set up a kind of "information guarantee authority" which would be responsible to the government for the proper application of this directive.

2.8. The public authorities can reject a request for environmental information only in specific, clearly defined cases, i.e. for certain categories of information and in order to safeguard legitimate interests. Such exceptions are very tightly drawn so as not to weaken the general principle of access: they concern information not held by and for the public authority - albeit with a provision for transferring the request to another authority which is believed to hold the information - or unreasonable requests defined as vexatious or amounting to an abus de droit, or requests which would involve disproportionate cost or effort or would obstruct or significantly interfere with the normal course of the public authority's activities.

2.9. In cases where the public authority considers that the public interest outweighs the confidentiality of personal data, it must inform the competent national data protection supervisory authority, established by Article 28 of Directive 95/46/EC. The exception protecting the confidentiality of commercial or industrial information cannot be invoked if it concerns emissions, discharges or other releases into the environment which are covered by Community legislation. The requirement to comply with intellectual property law means that the applicant is not authorised to reproduce or exploit the information for any other economic purposes without the prior authorisation of the rightholder.

2.9.1. Adequate protection of legitimate private and public interests is a fundamental principle to which the Committee attaches great importance: in view of the extension of the scope and the need for complete, satisfactory responses the Committee thinks it realistic and prudent - to avoid hurried refusals or violation of legitimate rights - to allow for a possible justified and substantiated extension of the response time by a maximum of 30 extra days.

2.10. The authority must give the applicant reasons for a refusal of access to information, and avoid the practice of regarding a lack of reply as a decision of refusal; the authority must also inform the applicant of the review procedure available to him. The Committee shares the Commission's view that a lack of reply on the part of the public authorities cannot in any case be regarded as a refusal, and calls upon the Commission to take care that no national rule justifies such a practice.

2.11. Public authorities should be able to make a charge for supplying environmental information but such a charge should not exceed a reasonable amount. In this connection, a schedule of charges should be publicised and made available to applicants. The Committee takes the view that the charge must not be so high as to discourage requests for information, and should correspond essentially to the amount charged for equivalent public services. A scale of charges could be justified by different types of treatment required, with no charge equalling the total direct and indirect costs of collecting and providing the information as laid down by the European Court of Justice in its Judgment in the Commission v. Germany, case C-217/97.

2.12. In order to comply with the international commitments entered into by signing the Århus Convention, Article 6 of the proposal provides for possible access to a court of law or other body established by law in which the acts or omissions of the public authority concerned can be reviewed. It also imposes an obligation on the Member States to ensure that an applicant has access to an additional procedure providing for reconsideration by the same public authority or administrative review by another body established by law, and that any such procedure is expeditious and either free of charge or inexpensive.

2.12.1. The Committee endorses the purpose of this change; however, in order to avoid an appeal being lodged against the authority concerned solely because of the difficulty of finding and producing the information requested within the obligatory deadline - a "radicalisation" of the procedure which would not be useful to either side - it suggests allowing a "clock stop" of an extra 30 days if needed to ensure a correct and adequate response.

2.13. A significant step forward has been taken with the provision on the "active supply of information", previously only hinted at: to guarantee that the general public is evenly informed throughout the Community, the proposal contains a non-exhaustive list of the kinds of environmental information which should be systematically made available to the public, and provides for the use of computer or electronic telecommunication technology to that end.

2.14. The proposal also requires the publication, at regular intervals not exceeding four years, of national, regional or local reports on the state of the environment, including information on the quality of, and pressures on, the environment.

2.15. Like Directive 90/313/EEC, the proposal provides for a review, albeit five instead of four years after transposition, and obliges Member States to report to the Commission on its application. It also requires Member States to take all necessary measures to comply with the directive no later than a date to be specified. This lack of clear and early deadlines does not seem to be justified.

3. Specific comments

Article 3(2)(b)

3.1. The possibility for the authority to provide a reply within two months, solely when the information requested is complex or voluminous under the terms of the Århus Convention, should apply to all cases where such a situation may occur - duly justified and substantiated. The most important would be:

- when the public authority does not directly hold the information and must involve other natural or legal persons which hold it;

- when the legitimate interests whose confidentiality is safeguarded are difficult to assess;

- when different authorities are involved, such as legal or military authorities or international institutions.

Article 4(2)(d)

3.2. The reference to confidentiality "provided for by law" in protecting a legitimate economic interest could give rise to some ambiguity because of the peculiarities of different national legal systems, which are sometimes reflected in the actual transposition of Community directives. In order to avoid a restrictive interpretation, it would be desirable to simplify the paragraph by wording it: "... provided that the confidentiality protects a legitimate economic interest". The Committee endorses the second sentence of the same paragraph, which should also specify that the data used to calculate such emissions must not be regarded in themselves as information on the emissions.

Article 5

3.3. This article concerns the service providing environmental information; in the language versions where "taxes" are mentioned, another term must be substituted for it to avoid harmful misunderstandings.

Article 7(3)

3.4. The Committee fully agrees with the objective of disseminating immediately and without delay all useful information where there is an imminent threat to human health or the environment. To avoid taking measures and providing information which could cause unwise and unjustified panic, or taking arbitrary measures, the Committee suggests a reference to the Commission Communication on the precautionary principle(1), reaffirming in particular the idea expressed in its opinion on the subject(2), namely that any measure should start with an objective risk assessment and identify, where possible at each stage, the degree of scientific uncertainty.

Brussels, 29 November 2000.

The President

of the Economic and Social Committee

Göke Frerichs

(1) COM(2000) 1 of 2 February 2000.

(2) Chapter 6 of the ESC opinion on Use of the precautionary principle (OJ C 268, 19.9.2000, p. 9).