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"
Date: 2000-11-29
Institutions: European Economic and Social Committee
Subjects: access to information, dissemination of information, environmental policy, polluter pays principle, pollution control measures

20.4.2001

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Official Journal of the European Communities

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4.3. With particular regard to the Directive on substitution
of hazardous substances, the Committee calls for a thorough
examination of the numerous national regulations governing
products containing heavy metals, PBDEs and PBBs, to enable
the new legislation to benefit more satisfactorily from such
experience. In order to ensure that the Directive’s objectives
are achieved, the voluntary agreements which already exist in
some Member State should also be exploited to the full,
by capitalising on their achievements and remedying any
weaknesses encountered thus far.

4.4.
PVC (polyvinyl chloride) is a particularly problematic
substance for the treatment and disposal of WEEE. Plastics in
general account for 20 % of WEEE (point 5.2 of the Explanatory
Memorandum). PVC alone accounts for more than 20 % of the
plastic used in electrical and electronic equipment. In its Green

Brussels, 29 November 2000.

Paper on the Environmental issues of PVC (1), the Commission
identifies and explains the problems which PVC causes for the
environment and human health. These are mostly linked to
the use of certain additives and to the management of PVC
waste.

4.5.
Given the importance of the subject and its impli-
cations for economic and social decisions, the Committee is
ready to contribute to the debate launched by the Green Paper.
It appreciates the Commission’s declared intention to present,
at the beginning of 2001, a communication setting out a
comprehensive Community strategy on the environmental
issues of PVC. The Committee believes that the proposed
Directives must contain an explicit commitment to amend
these legislative instruments in the future, in the light of future
developments in the Community approach to solving the
environmental problems posed by the use of PVC.

(1) Draft Green Paper —Environmental

issues of PVC —

COM/2000/469 of 26 July 2000.

The President

of the Economic and Social Committee

Göke FRERICHS

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

— to pave the way towards the ratification by the European
the UN/ECE Convention (‘the Århus

Community of
Convention’) signed on 25 June 1998;

The proposal

for a directive is not confined to
1.1.
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

— to adapt Directive 90/313/EEC to developments in infor-

of Directive 90/313/EEC;

mation technologies.

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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;

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.

— protecting human health;

— prudent and rational utilisation of natural resources;

— promoting measures at international level to deal with

regional or world-wide environmental problems.

Giving the public access to environmental information
1.3.
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 commit-
ments the Community undertook in signing the Århus Con-
vention (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.

The proposal

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

Experience shows that a more proactive approach
1.7.
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, adminis-
trative 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

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 expendi-
ture, but probably a reduction in subsequent costs of pro-
cessing 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

The Committee welcomes the Commission’s intention
2.1.
to accede to the Århus Convention and endorses the Com-
mission’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 arrange-
ments and conditions for such access — constitutes a signifi-
cant 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 system-
atically made available and disseminated to the general public,
including through the use of computer telecommunication
and/or electronic technology.

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The definition of

2.3.
extended to cover:

‘environmental

information’

is

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

— 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.

— 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 environ-

ment;

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.

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

— 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 Com-
munity 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;

Article 6 of Directive 90/313/EEC lays down that the
2.4.
Directive shall also apply to bodies with ‘public responsibilities
for the environment’ and under the control of public auth-
orities — 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.

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

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.

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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.

The Committee agrees in general that it is desirable
2.6.1.
to reduce response times, but not at the expense of complete-
ness 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.

portionate 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 super-
visory 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.

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

— the appointment of information officers;

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.

— 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.

2.10.
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.

2.8.
The public authorities can reject a request for environ-
mental 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 dispro6

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.

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2.12.
In order to comply with the international commit-
ments 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.

The Committee endorses the purpose of

2.12.1.
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 telecom-
munication 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 environ-
ment.

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
it would be desirable to
avoid a restrictive interpretation,
simplify the paragraph by wording it:
‘... provided that the
confidentiality protects a legitimate economic interest’. The
Committee endorses the second sentence of the same para-
graph, 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

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

Article 7(3)

Like Directive 90/313/EEC, the proposal provides for
2.15.
a review, albeit five instead of four years after transposition,
and obliges Member States to report to the Commission on its

The Committee fully agrees with the objective of
3.4.
disseminating immediately and without delay all useful infor-
mation where there is an imminent threat to human health or

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the environment. To avoid taking measures and providing
information which could cause unwise and unjustified panic,
the Committee suggests a
or taking arbitrary measures,
reference to the Commission Communication on the pre-
cautionary 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.

(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).

Brussels, 29 November 2000.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Proposal for a Directive of the European
Parliament and of the Council relating to the Assessment and Management of Environmental
Noise’

(2001/C 116/10)

On 10 October 2000 the Commission 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 Gafo Ferna´ndez.

At its 377th plenary session (meeting of 29 November 2000), the Economic and Social Committee
adopted the following opinion by 110 votes to one with two abstentions.

1.

Introduction

1.3.
The 1996 Green Paper on Future Noise Policy judged
the situation to be unsatisfactory. As a result, the present
proposal sets out three clearly-defined lines of action:

1.1.
The proposal sets out to create a harmonised system
of measurement, assessment and public information in the
various Member States on ‘environmental noise’, meaning
noise perceived by individuals in their normal places of
residence and which cannot be traced a single source, but
arises from all nearby noise emission sources.

— harmonising noise indicators and methods for assessing
impact of noise, within the Com-

the environmental
munity;

— on the basis of the above data, drawing up ‘noise maps’
using methodologies which are, in turn, harmonised;

— establishing public information criteria.

To date, noise control legislation has focused on setting
1.2.
maximum noise emission levels for a series of industrial
products (such as cars, motorcycles, aircraft, lawnmowers, civil
engineering equipment, etc.), in order to meet single market
criteria (harmonisation to remove trade barriers) and boost
efforts to reduce the harmful effects on citizens in general or
workers in particular.

1.4.
The draft directive will not set unified or harmonised
noise standards, since a majority of Member States have
already set national
levels, but it will enable comparative
information to reach the general public.