WRITTEN QUESTION E-2789/01

by Hiltrud Breyer (Verts/ALE) to the Commission

(9 October 2001)

Subject: Inadequate implementation of the Directive on the freedom of access to information on the environment (90/313/EEC)

The Environmental Information Act of 8 July 1994 partially transposed into German law the Directive on the freedom of access to information on the environment (90/313/EEC)(1). The implementation of the Environmental Information Act in North Rhine-Westphalia (Federal Republic of Germany) has led to problems which run counter to the objectives of the EU Directive on the freedom of access to information on the environment.

1. Those businesses guilty of environmental pollution are trying to ensure relevant information remains secret by declaring it a company or trade secret. The extent to which such a declaration is accepted differs from authority to authority. What is being undertaken to ensure that information on environmental pollution, for example the composition of the waste water discharged into the Rhine by BAYER, is not permitted to remain a company or trade secret?

2. Some authorities make prohibitively high and inappropriate administrative charges, whereas others make no charge at all for comparable services. Charges which are too high, and which many of those affected can therefore not afford to pay, ultimately undermine the purpose of the Directive, namely freedom of access to information. How does the Commission propose to prevent excessive charges from the outset, so that an appropriate charge is not agreed on only after taking legal action, as was the case up until now?

3. Some authorities delay the processing and forwarding of requested information due to pressure from industry. For example, the Society for the Protection of the Rhine and its Tributaries (VSR) received the data on discharges it had repeatedly requested only after two years. Current environmental pollution can therefore only be guessed at. What does the Commission propose to do to guarantee immediate access to current information?

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

Answer given by Mrs Wallström on behalf of the Commission

(29 November 2001)

1. It has to be assessed on a case by case basis whether information on emissions is covered by the exception for industrial or trade secrets as provided by Article 3 (2) 4th indent of Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment(1). It has to be stressed that any decision rejecting an application for access to such information needs to provide sufficient reasoning to enable the applicant and the courts to assess whether this exception is applied legitimately. Currently the Commission is not investigating possible infringements of Directive 90/313/EEC regarding the application of this exception in Germany.

2. The German rules on charges for access to environmental information are the subject of the decision of the Court of Justice on 19 September 1999 in case C-217/97, Commission v. Germany. There the Court has held that the then existing rules on the level of administrative charges in case of access to environmental information would not infringe Directive 90/313/EEC, without pronouncing itself on the practical application of those rules.

However, Germany has recently notified changes to the Environmental Information Act by the Gesetz zur Umsetzung der UVP-Änderungsrichtlinie, der IVU-Richtlinie und weiterer EG-Richtlinien zum Umweltschutz of 27 July 2001(2) to the Commission, which deal with the issue on the federal level. Article 22 of the Act of 27 July 2001 changes the Regulation on fees for environmental information (Umweltinformationsgebührenverordnung). The level of possible fees has been reduced, the maximum fee has been limited to 500. This only applies to federal authorities.

3. On 1 February 2000, the Commission has applied to the Court of Justice because Germany failed to ensure that, within a period of two months after the request, the authorities of the Land Schleswig-Holstein either provided the information requested or refused the request(3). The German Act of 27 July 2001 also addressed the issue of this question.

Article 21 No 2 modifies § 5 (2) 1st sentence of the Environmental Information Act as follows:

Should the applicant be entitled to receive the information, access has to be granted within two months; should there be no entitlement the application has to be rejected within this period(4).

The Commission is satisfied that this provision prevents excessive delays.

On 29 June 2000, the Commission adopted a proposal for a Directive of the Parliament and of the Council on public access to environmental information(5). The proposal will replace Directive 90/313/EEC. On the one hand, the proposal aims at correcting the shortcomings identified in the practical application of Directive 90/313/EEC. On the other hand, it will pave the way towards the conclusion by the Community of the United Nations/Economic Commission for Europe (UN/ECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters by implementing the obligations arising from the so-called first pillar of the Convention (access to environmental information) into Community law.

(1) OJ L 158, 23.6.1990.

(2) BGBI. 2001, I-1950.

(3) Case C-29/00 not yet decided, cf. OJ C 149, 27.5.2000, p. 14.

(4) Non-expert translation, the original text reads as follows: Bei Bestehen eines Anspruchs ist die Information innerhalb einer Frist von zwei Monaten zugänglich zu machen; bei fehlendem Anspruch ist innerhalb dieser Frist ein blehnungsbescheid zu erteilen.

(5) OJ C 337 E, 28.11.2000.