COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council on public access to environmental information

2000/0169 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council on public access to environmental information

1- BACKGROUND

Date of transmission of the proposal to the EP and the Council (document COM(2000)402 final - 2000/169 COD): // 29 June 2000.

Date of the opinion of the Economic and Social Committee: // 29 November 2000.

Date of the opinion of the European Parliament, first reading: // 14 March 2001.

Date of transmission of the amended proposal: // 6 June 2001.

Date of adoption of the common position: // 28 January 2002.

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.

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 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- COMMENTS ON THE COMMON POSITION

3.1 General comments

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

In general, the Commission accepted those amendments seeking to make the proposal more consistent with the Aarhus Convention. Other amendments which usefully clarified some provisions of the proposal were accepted in principle or in part.

However, those amendments which substantially deviated from the Aarhus acquis or which fell outside the scope of the proposal were not accepted.

3.2 Detailed comments

3.2.1 Parliamentary amendments accepted by the Commission and incorporated in full or in part in the common position

The Commission accepted in part amendment 1. The Council accepted this. As a result, recital 1 has been amended to take on board the main underlying ideas of the amendment.

Amendment 3 was also accepted by the Commission and by the Council.

Amendment 15 dealing with the definition of public authorities in Article 2(2)(c), was accepted in part by the Commission to align its proposal with the definition laid down in the Aarhus Convention. This part of the definition can be now found in Article 2(2)(b) of the Common Position.

Amendment 17 and part of amendment 20 both dealt with the follow-up to be given by public authorities to requests formulated in too general a manner. The underlying idea behind those amendments was that, in such cases, public authorities should seek clarification from applicants and should assist them in the formulation of requests. Both amendments were accepted in principle by the Commission. Article 4(3) of the original proposal was amended to take account of them. As a result, where a request is formulated in too general a manner, public authorities shall ask the applicant to specify the request and shall assist the applicant in doing so, e.g. by providing information on the use of the public registers referred to in Article 3(5)(c).

The Commission accepted partly and in principle amendment 19 dealing with the practical arrangements and in particular the requirement on public authorities to provide advice to the public. As a result, a new indent (d), which requires officials to support the public in seeking access to information was added to Article 3(5).

The part of amendment 21 dealing with Article 4(2)(g) of the proposal was accepted in principle by the Commission provided that the exact wording of the Aarhus Convention was reproduced. The Council agreed to this.

The same applies to the part of amendment 21 dealing with the closing paragraph of Article 4(2) of the original proposal. The European Parliament sought to specifically mention in the text that grounds for refusal should be interpreted in a restrictive manner. The Commission accepted this part of the amendment which sought to further align the text to the Aarhus Convention. The Council also accepted this.

Part of amendment 25 sought to further align Article 6(1) and (2) of the original proposal to the corresponding provision of the Aarhus Convention by adding the words "independent" and "impartial" to the bodies established by law referred to in these paragraphs. The Council agreed to this.

The Commission accepted part of amendment 26, relating to Article 7 on the dissemination of environmental information. In particular, it accepted the part of the amendment seeking to add the words "at least" to the kinds of information that shall be disseminated to make clear that it is a minimum non-exhaustive list of information and that Member States can go beyond this when they implement the directive. The Council also accepted this.

The Commission accepted in principle the part of amendment 28 which sought to require the Commission to draw up a guidance document laying down how the national reports referred to in Article 7 of the original proposal should be prepared. The Council accepted this.

3.2.2. Parliamentary amendments accepted by the Commission but not incorporated in the common position

Amendment 15 sought to include a new definition of "information held by a public authority". This was acceptable to the Commission but the Council did not agree to its inclusion.

Under Article 4(1)(c) of the original proposal, public authorities were allowed to refuse access to environmental information if the request concerned material in the course of completion or internal communications. In each case, the public interest served by disclosure had to be taken into account. Part of amendment 20 sought to make this exception subject to the weighing of the interests at stake as required for the exceptions provided for in Article 4(2). The Commission accepted this idea. However, the Council could not agree to it.

The Commission also accepted the part of amendment 21 dealing with Article 4(2)(a) of the original proposal and which sought to further align the text to the Aarhus Convention. This was not taken on board.

The Commission accepted in principle the part of amendment 23 which sought to require public authorities to provide the name of the responsible person and the estimated timetable for completion in cases where the request was refused for the reason that it concerned material in the course of completion. In the Commission's opinion, this should be done "wherever practicable". The Council did not accept this.

The Commission also accepted in part and in principle amendments 11 and 24 dealing respectively with recital 21 and with the corresponding Article 5 of the original proposal on charges. The European Parliament sought to make clear that the charges that public authorities may make for the supply of environmental information should not exceed the cost of reproducing the material requested and should not include the time spent by staff on searches and on the compilation of the information requested. The Council did not agree to this.

The Commission accepted to add to the list of minimum information to be disseminated to the public in Article 7, "environmental agreements" as requested by the European Parliament in amendment 26. The Council did not accept this.

In amendment 28 the European Parliament requested that Member States should report to the Commission on the experience gained in the application of the directive not later than December 2005. In amendment 13, the European Parliament had requested that a review of the Directive had to take place every four years after the submission by the Member States of the national reports. The Commission accepted to amend its original proposal so as to require Member States to report on the experience gained 4 years after the deadline for transposition instead of 5 years. The Council did not accept this. Under the current wording of Article 8, Member States will have to report on the experience gained 7 years after the deadline for transposition. The national reports will have to be communicated to the Commission six months after this date.

Amendment 29 sought to lay down a 12 months deadline for the transposition of the directive into national law. The Commission suggested an 18 months deadline to take account of the fact that all provisions of Directive 90/313/EEC had been amended. This was not accepted by the Council who wished to have a longer deadline for the transposition. Under the current wording of Article 9, Member States will have to transpose the Directive 2 years after its entry into force.

3.2.3 Changes made by the Council to the proposal

Recitals of the original proposal

In recital 5 the words "aligned" and "ratification" have been replaced respectively by "consistent" and "conclusion".

Recital 9 was amended to reflect the new wording of the corresponding provision in the text.

Minor simplifying amendments were made to recitals 10 and 13.

Recital 14 was amended in order to reflect the changes introduced to the corresponding Article 3.

Recitals 15 and 16 were merged and slightly reworked to better reflect the wording of Article 3 of the original proposal.

Recital 18 was reworked to better relate to the new wording of the corresponding Article and to reflect in part amendment 9.

Recital 19 was deleted in order to reflect the new wording of Article 4(2)(d).

Recital 21 was reworked to mirror the changes introduced to the corresponding Article of the text, that is, Article 5.

Recital 23 was amended to take account of the new wording of the corresponding Article 7.

Recital 24 was slightly reformulated to take account of part of amendment 24 of the European Parliament namely to link the national reports on the experience gained in the application of the Directive to the review procedure.

A new last recital was added which specifically states that the provisions of the Directive shall not affect the right of a Member State to maintain or to introduce measures providing for broader access to information than required by this Directive. Legally speaking, the inclusion of such a provision is superfluous as Article 176 of the EC Treaty already provides for this.

The recitals of the Common Position were renumbered to take account of the deletion of the recitals of the original proposal mentioned above.

Article 1: Objective

One of the objectives laid down in Article 1 of the proposal is now "to promote, as a matter of course, the widest possible systematic availability and dissemination to the public of environmental information". This is weaker than the original proposal which referred to ensuring that, as a matter of course, environmental information is made available and disseminated, in particular, by means of available computer telecommunication and/or electronic technology.

Article 2: Definitions

The Council added a reference to "wetlands, coastal and marine areas" to the definition of "environmental information" laid down in Article 2(1) of the proposal. The Commission had not accepted this part of amendment 15 tabled by the European Parliament in order to ensure consistency with the definition of "environmental information" laid down in the Aarhus Convention which does not include such a reference.

Furthermore, the Council merged Article 2(1)(c) of the definition of "environmental information" with Article 2(1)(b) as it was considered that "emissions, discharges and other releases into the environment" could be assimilated to "factors likely to affect the elements of the environment". The Commission accepted this.

Finally, the reference to "human health and safety" under Article 2(1)(b) of the proposal was deleted as it was considered that it was sufficiently covered by Article 2(1)(f) of the proposal (Article 2(1)(e) of the Common Position). The Commission also accepted this change.

The definition of "public authorities" laid down in Article 2(2)(b) of the proposal was placed in Article 2(2)(c) and was reworded. This was done to align it to the corresponding provision of the Aarhus Convention.

The last sentence of the definition of "public authorities" laid down in Article 2(2) of the proposal was amended to align it to the exact wording of the Aarhus Convention.

The definition of "information held for a public authority" laid down in Article 2(3) of the proposal was simplified. The underlying principle of the definition in the Commission proposal is however ensured.

The Council added a new definition of the term "public" in Article 2(5). This definition is consistent with the one laid down in the Aarhus Convention. The Commission also accepted this.

Article 3: Access to environmental information upon request

Paragraph (3) of Article 3 of the Commission proposal required public authorities to make reasonable efforts to supply the information requested by an applicant for a specific purpose within the time-period as it would be necessary to enable the applicant to fulfil that purpose. This paragraph was deleted as it was considered that this would create a "two-speed system" for the supply of the information requested. Those applicants stating that the information was requested for a specific purpose were likely to receive a more favourable treatment than those not having stated the reason behind the request. It was also considered that this provision could be somehow in contradiction with Article 3(1) of the proposal under which applicants do not have to state an interest when they lodge a request for information. Finally, it should also be noted that the general rule, following Article 3(2), is that information has to be supplied, as soon as possible, and at the latest within one month.

Despite the above, and in order to take some account of the underlying idea behind this provision, a reference "to any timescale specified by the applicant" was added to Article 3(2). The Commission agreed to this.

Under Article 3(4)(a), public authorities are now required to supply the information in the specific form or format required by the applicant unless such information "is already publicly available in another form or format, in particular under Article 7, which is easily accessible". The reference to Article 7 dealing with the active supply of information is acceptable to the Commission. However, the Commission is less content with the deletion of the reference to "by the applicant" in (a). Information disseminated by public authorities by means of new information and communication technologies can indeed be easily accessible to an applicant having access to this type of technology. But not all applicants may have access to new information and communication technologies.

Article 4: Exceptions

Requests for environmental information might be sometimes lodged by applicants with public authorities not holding such information. Under the new wording of Article 4(1)(a), in such cases, the public authority to which the request has been addressed will be allowed to transfer the request to the public authority which holds the information and inform the applicant accordingly or to inform the applicant of the public authority to which it believes it is possible to apply for the information requested. Under the terms of the Commission proposal, the public authority to which a request had been wrongly addressed had the obligation to transfer the request to the public authority holding the information if this was known. The applicant had to be informed accordingly. The current wording is weaker than the original proposal. However, it is consistent with the corresponding provision of the Aarhus Convention.

Under Article 4(1)(c) of the original proposal, public authorities were entitled to refuse access to information if the request concerned material in the course of completion or internal communications. In each such case, the public interest served by the disclosure had to be taken into account. This sentence was replaced by "taking into account the public interest served by disclosure". This wording is consistent with the corresponding provision in the Aarhus Convention. However, the original proposal sought to make clear that each time that such a request was made, the public authority concerned had to take into account the public interest served by the disclosure before taking a final decision on the request.

Article 4(2)(d) of the original proposal allowed public authorities to refuse information if disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality was provided by law to protect a legitimate economic interest. A reference to "the public interest to maintain statistical confidentiality and tax secrecy" was added despite the fact that the corresponding provision of the Aarhus Convention does not include such a reference.

In addition, the original proposal did not allow public authorities to withhold under this exception information on emissions, discharges and other releases into the environment which were subject to provisions of Community legislation. This part of Article 4(2)(d) has now been aligned to the corresponding provision of the Aarhus Convention which is weaker than the original proposal and reads as follows: "Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed".

Article 4(2)(f) dealing with the protection of personal data was amended to align it to the wording of the corresponding provision of the Aarhus Convention. Account has thus been taken of amendment 21 of the European Parliament.

The last sentence of Article 4(2) was amended to align it to the wording of the Aarhus Convention and now reads as follows: "Grounds for refusal have to be interpreted in a restrictive way taking into account for the particular case the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment". The original proposal sought to make clear that in each case, the public interest served by disclosure had to be weighed against public interest protected by the exception. Access to the requested information should be granted if the public interest outweighed the latter interest.

Article 4(4) was amended to make it more consistent with the Aarhus Convention. The Convention does not require that requests for information have to be made in writing. Despite this, the original proposal required public authorities to notify refusals in writing. Under the current wording, public authorities will only be required to notify refusals to applicants in writing or electronically if the request was in writing or if the applicant so requests.

Article 5: Charges

Article 5(1) of the original proposal did not allow public authorities to make the supply of any information subject to the advance payment of a charge. Under the present wording, public authorities will be allowed to do so. However, they will have to publicise and make available to applicants a schedule of charges which may be levied, indicating when the supply of information is conditional on the advance payment of such a charge. Though less ambitious than the original proposal, the new wording is consistent with the Aarhus Convention.

Under Article 5(3) of the original proposal, examination in situ of the information requested should be free of charge. Under the present wording, the consultation of the requested information in situ shall not be made subject to any additional charge.

Article 6: Access to Justice

The Commission's proposal laid down that Member States had to ensure that applicants have access to an administrative and a judicial procedure to challenge acts or omissions of the public authorities in relation to a request. In addition to this, Article 6(2) specifically allows public authorities to provide legal recourse to third parties that might have been incriminated by the disclosure of the information by a public authority. The Aarhus Convention does not prevent Parties to provide for such procedures and in some Member States these procedures already exist. Therefore, the Commission accepted this addition.

The Common Position clarifies that only final decisions issued from the review procedure provided for under Article 6(2) shall be binding on the public authority holding the information. To further align the text to the corresponding provision of the Aarhus Convention, a new sentence has been added which reads as follows: "Reasons shall be stated in writing, at least where access to information is refused under this Article".

Article 7: Dissemination of environmental information

Under Article 7(1), the type of environmental information which has to be organised with a view to its active dissemination to the public has been further clarified. Public authorities will have to disseminate only environmental information "which is relevant to their functions" and not "environmental information" in general as was foreseen in the original proposal. Thus a public authority responsible for air quality would have to disseminate e.g. information about air quality and not information about water resources if this area does not fall within its sphere of responsibility. This is in line with the Aarhus Convention.

The information referred to above will have to be disseminated "in particular by means of computer telecommunication and/or electronic technology, where available" instead of "by means in particular of available computer telecommunication and/or electronic technology" in the original proposal.

The information made available by means of computer telecommunication and/or electronic technology need not include information collected before the entry into force of the directive unless it is already available in electronic form. This provision aims at avoiding that historical information not available in electronic form at the time when it was produced has to be disseminated electronically.

The information to be made available and disseminated shall "be updated as appropriate". This reference has been added to take account of the Aarhus Convention while ensuring at the same time a certain degree of flexibility to Member States when they implement this provision.

The last paragraph of Article 7(1) of the original proposal which required public authorities to make reasonable efforts to maintain environmental information and in particular, the kinds of information specifically listed in (a) to (e) in forms or formats that are readily reproducible and accessible by computer telecommunications or by other electronic means has been deleted. This is weaker than the original proposal.

Finally, a last paragraph (6) was added. It clarifies that the requirements of Article 7 may be satisfied by creating links to Internet sites where the information can be found.

4- CONCLUSION

The Commission considers that the Common Position does not alter the basic approach and aims of the original proposal and that it actually clarifies some aspects thereof. However, in other aspects, the proposal has been weakened and the deadlines for the transposition and for the review procedure have been prolonged. Though in general less ambitious than the original proposal, the text as it now stands is consistent with the provisions of the Aarhus Convention.

The Commission can thus broadly support the Common Position but will be flexible in its approach to second reading.

5. DECLARATIONS

The declarations made by the Commission and by the Council and the Commission jointly are reproduced in the annex to this Communication.

ANNEX

Re Article 7

"The Commission insists that the active information under Article 7 does not dispense Member States from making reports to the Commission about the implementation of Community legislation as provided for in that legislation.

The Council and the Commission declare that the reports to the Commission about the implementation of Community legislation may be used for the relevant parts of the reports on the state on the environment under Article 7(2)."

Re Implementation of the Convention of Aarhus by the Community

"The Commission intends to present by June 2002 a report outlining the steps required to enable the European Community to conclude the Convention of Aarhus".