WRITTEN QUESTION E-3714/00

by Paul Lannoye (Verts/ALE) to the Commission

(30 November 2000)

Subject: Access to information on the extension of Barajas airport in Madrid

In its reply of 5 July 2000 to our Question No E-1518/00(1) regarding the implementation of Council Directive 90/313/EEC of 7 June 1990(2) on freedom of access to information on the environment, the Commission stated that the authorities had acted on the requests, although they had replied late.

That statement is incorrect, since the relevant information has still not been supplied to the people who requested it.

In a letter of 17 July 2000 to the Commission (for the attention of Mr G. Kremlis), the Entidad de la Moraleja provided evidence proving that AENA (the Spanish Airports Authority) had not given a proper reply and was in breach of Directive 90/313/EEC. The data on average hourly noise emissions had in fact been supplied in the wrong format. This restriction on access to such information places a question mark over the thoroughness of the environmental impact assessment procedure and reduces the capacity of citizens to exercise their rights to environmental and health protection.

What action has the Commission taken to date with a view to ensuring the above directive is complied with in full, and what will be its next step?

Would it not agree that it should open infringement proceedings against the Spanish State for failure to comply with the directive?

(1) OJ C 113 E, 18.4.2001, p. 22.

(2) OJ L 158, 23.6.1990, p. 56.

Answer given by Mrs Wallström on behalf of the Commission

(1 February 2001)

Article 4 of Council Directive 90/313/EEC(1) of 7 June 1990 on the freedom of access to information on the environment stipulates that a person who considers that his request for information has been unreasonably refused or ignored, or has been inadequately answered by a public authority, may seek a judicial or administrative review of the decision in accordance with the relevant national legal system.

The Directive was transposed into Spanish law by Law No 38/1995 of 12 December 1995 on the right of access to information on the environment, recently amended by Law No 55/1999 of 29 December 1999, which established the right to seek reviews in such cases.

If Entidad de la Moraleja believes there has been an infringement of Directive 90/313/EEC in relation to its requests for information from the Spanish authorities, it has the option of going through the appropriate review channels at national level to bring in the Spanish administrative and legal authorities, which have prime responsibility for the official enforcement of Community law in Spain.

To check that Directive 90/313/EEC has been properly applied in the case in hand, the Commission has contacted the Spanish authorities several times for explanations of the potential infringement situation reported to it.

The Spanish authorities' response shows that they have already replied to several requests for information and are continuing to respond to Entidad de la Moraleja's many requests. Albeit with occasional delays, the Spanish authorities are making the information they hold available to the requestor. It should also be noted that Directive 90/313/EEC makes no provision regarding the form in which requested information is to be made available to the requestor.

With specific regard to instituting infringement proceedings for improper application of Directive 90/313/EEC in this instance, it should be noted that the Court of Justice has consistently held that the Commission is not bound to institute infringement proceedings under Article 226 (ex Article 169) of the EC Treaty, but may do so at its own discretion. Exercising that discretion, the Commission does not systematically take up every single reported case of alleged improper application of this Directive. Only where consistent poor administrative practice can be identified, or where one-off cases of improper application can be grouped together

by virtue of a common link, will the Commission generally decide to institute infringement proceedings under Article 226 of the EC Treaty. However, the information available to it in the present case suggests that neither of these categories applies in this instance.

(1) OJ L 158, 23.6.1990.