Amended proposal for a Directive of the European Parliament and of the Council on public access to environmental information. (presented by the Commission pursuant to Article 250 (2) of the EC-Treaty)
Date: 2001-06-06
Institutions: European Commission
Subjects: EC Directive, access to information, dissemination of information, environmental policy, law relating to information

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Amended proposal for a Directive of the European Parliament and of the Council on public access
to environmental information (1)

(2001/C 240 E/34)

(Text with EEA relevance)

COM(2001) 303 final (cid:151) 2000/0169(COD)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 6 June 2001)

On 14 March 2001, the European Parliament voted in first
reading on the amendments
tabled on the Commission
proposal for a Directive of the European Parliament and of
information
the Council on public access to environmental
(COM(2000) 402 final of 29 June 2000).

the EC Treaty states that as long as the
Article 250(2) of
Council has not
its
acted,
proposal at any time during the procedures leading to the
adoption of a Community act.

the Commission may alter

The Commission
hereafter
amendments adopted by the European Parliament.

opinion

gives

its

on

the

1. BACKGROUND

to the Council and to the
Transmission of
European Parliament (COM(2000) 402 final) accordance with
Article 175(1) of the EC Treaty: 29 June 2000.

the proposal

Opinion of the Economic and Social Committee: 29 November
2000.

Opinion of the Committee of the Regions: 15 February 2001.

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.
It was prepared in accordance with Article 8 of that Directive
which calls upon the Commission to submit any proposal for
the
revision it may consider appropriate in the light of
experience gained in the operation of the directive. A report
of the Commission to the European Parliament and to the
Council on the experience gained in the application of
Directive 90/313/EEC accompanied the proposal (COM(2000)
400 final of 29 June 2000).

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
to
Community of
Information, Public Participation in Decision-Making and
Access to Justice in Environmental Matters (the so-called

the UN/EC Convention on Access

(1) OJ C 337 E, 28.11.2000, p. 156.

Aarhus Convention),
alignment of
the Convention.

the proposal

signed

in 1998,

the
to the relevant provisions of

through

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.

it was considered appropriate,

increased transparency and legal certainty,

Due to the numerous amendments
to Council Directive
90/313/EEC proposed,
in the
to
interest of
replace it rather than to amend it. This way of proceeding
will provide interested parties, and in particular the public in
general with a single clear and coherent
legislative act.
However, existing acquis is not open to discussion.

The central elements of the proposal are:

(cid:151) To grant a right of access to environmental

information
(instead of the freedom of access in Directive 90/313/EEC)
and to ensure that environmental
information is made
available and disseminated to the public in particular by
means of the new information and communication tech-
nologies;

(cid:151) A wider definition of environmental information than the
one laid in Directive 90/313/EEC as well as a more detailed
definition of public authorities;

(cid:151) A shorter deadline of one month (instead of

two in
Directive 90/313/EEC) within which public authorities
have to supply the requested information to applicants;

(cid:151) 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 interested served by the exceptions.
Access to the information shall be granted if the public
interest
interest
protected by an exception;

served by disclosure outweighs

the

(cid:151) 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;

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(cid:151) 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
information have
to environmental
for access
been provided for;

(cid:151) 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;

(cid:151) A revision of the directive should take place 5 years after
law. The
the deadline for
revision should take into account
the
reports from the Member States on the experience gained
in the practical application of the directive.

transposition into national

the findings of

3. COMMISSION OPINION OF THE AMENDMENTS ADOPTED

BY THE EUROPEAN PARLIAMENT

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

The Commission accepted partially amendments 1 (2nd and
3rd parts), 11 (3rd and 4th part), 15 (8th and 10th parts), 19
(3rd part), 21 (7th part) 24 (the reference to Article 3(5) and
2nd part), 25 (1st and 2nd parts), 26 (3rd part, 4th part on
environmental agreements) and 28 (3rd part).

Amendments 13 (1st part), 17, 19 (6th part), 20 (2nd and 3rd
parts), 21 (1st and 6th parts), 23 (2nd part), 24 (last part) were
accepted in principle but subject to either rewording or reor-
dering.

Amendment 3 was accepted in full.

Amendments 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 16, 18, 22, 27,
29 and 30 were not accepted.

The Commission’s position with regard to the amendments of
the European Parliament is as follows.

3.1. Amendments accepted in full by the Commission

The Commission can accept amendment 3 as it enables
full
the proposal with the Aarhus
Convention.

alignment of

3.2. Amendments partially accepted by the Commission

The Commission can accept parts 2 and 3 of amendment
1 on recital 1 of the proposal which, as a result, would
read as follows:

trust and confidence in
ensure good administration,
public authorities and the democratic participation of
citizens, with a view to ensuring that Community legis-
lation in this area is fully and effectively implemented, to
increasing awareness of environmental matters and to
improving environmental protection and the quality of
the environment throughout the Community(cid:146).

The Commission can also accept parts 3 and 4 of
amendment 11 on recital 21 which, as a result, would
read as follows:

(cid:145)Public authorities should be able to make a charge for
information but such a charge
supplying environmental
should not
should
exceed a reasonable amount.
furthermore not exceed the actual cost of reproduction
and should not include the cost of staff time spent on
In this connection, a schedule of charges
searches.
should be published and made available to applicants,
together with information on the circumstances in which
payments may be required or waived. Advance payments
should not be required.(cid:146)

It

The part of amendment 15 on Article 2(1)(b)
acceptable and would read as follows:

is also

(cid:145)factors, such as substances, energy, noise, radiation or
waste,
including radioactive waste, affecting or likely to
affect the elements of the environment referred to in (a)
or human health and safety(cid:146)

The part of amendment 15 on Article 2(2)(c) is equally
acceptable and would read as follows:

(cid:145)any legal or natural person performing public adminis-
trative functions under national
including specific
duties, activities or services in relation to the environment(cid:146).

law,

In order
Commission proposal should be deleted

consistency,

to ensure

recital 12 of

the

The Commission can also accept the part of amendment
15 on Article 2(3) new which, as a result, would read as
follows:

(cid:145)Information held by a public authority shall mean
environmental
information which has been received or
produced by a public authority(cid:146).

The part of amendment 19 on Article 3(5)
acceptable and would thus read as follows:

is also

(cid:145)Increased public access to environmental information held
by or for public authorities promotes a free exchange of
view and comprehensive information and is essential to

(cid:145)For the purposes of
this Article, Member States shall
define the practical arrangements under which environ-
mental
information shall be effectively made available.
These practical arrangements may include at least:(cid:146)

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The part of amendment 21 on the closing clause is also
acceptable to the Commission. The following sentence
should therefore be added to the beginning:

(cid:145)The information to be disseminated by public authorities
shall at least include: (f) environmental agreements(cid:146).

(cid:145)The above-mentioned grounds
to disclose
information shall be interpreted in a restrictive manner(cid:146).

refusal

for

The Commission can also accept partly amendment 24 on
Article 5(1) which, as a result, would read as follows:

(cid:145)Public authorities may make a charge for supplying any
information but such a charge may not
environmental
exceed a reasonable amount.
It shall not exceed the
actual cost of reproducing the information requested and
shall not include the costs of staff time spent on searches.
The supply of any information shall not be made subject
to the advance payment of a charge(cid:146).

The part of amendment 24 on Article 5(3)
acceptable and would therefore read as follows:

is also

(cid:145)Access to public registers or lists established and main-
tained as mentioned in Article 3(5) shall be free of
charge(cid:146). The
the paragraph would remain
unchanged.

rest of

The parts of amendment 25 relating to paragraphs 1 and
2 of Article 6 can also be accepted. They would therefore
read, respectively, as follows:

for

request

that his

shall ensure that any applicant who
(cid:145)Member States
information has been
considers
ignored, wrongfully refused (whether in full or in part),
inadequately answered or otherwise not dealt with in
accordance with the provisions of Articles 3, 4 or 5, has
access to a procedure before a court of
law or other
independent and impartial body established by law in
which the acts or omissions of
the public authority
concerned may be reviewed.

In addition to the review procedure before a court of law
or other body which is referred to in paragraphs 1 above,
Member States shall ensure that an applicant has access to
a procedure in which the acts or omissions of the public
authority concerned can be reconsidered by that public
authority or reviewed administratively by another inde-
pendent and impartial body established by law; any such
a procedure shall be expeditious and either free of charge
or inexpensive.(cid:146)

The Commission can also accept the parts of amendment
26 dealing with Article 7(1) second sentence and (f) new
which would therefore read as follows:

The part of amendment 28 dealing with Article 8(1) of the
Commission proposal is also acceptable and would read as
follows:

later

than one year after

(cid:145)Not
this
Directive, the Commission shall forward to the Member
States a guidance document
setting out clearly the
manner in which it wishes the Member States to prepare
their reports(cid:146).

the adoption of

3.3. Amendments
Commission

accepted

in

principle

by

the

The Commission can accept the proposal of the European
Parliament that the directive should be revised four years
(instead of 5 in the Commission proposal) after
the
deadline for transposition of
the directive by Member
States into national law in amendment 13. Recital 24 of
the proposal would therefore read as follows:

(cid:145)This Directive should be subject to a review in the light of
experience four years after the deadline for implemen-
tation(cid:146).

In order to ensure consistency, Article 8(1) of the proposal
should be amended accordingly and should read as
follows:

(cid:145)Not later than (insert the date which is four years after the
date referred to in Article 9), Member States shall report
on the experience gained in the application of
the
Directive(cid:146).

The Commission can also accept in principle the objective
of amendment 17. However, the Commission believes that
this amendment would better serve its purpose if it was
placed at the end of Article 4(1)(b). The Commission can
also accept in principle the part of the amendment 20
dealing with Article 4(1)(b) of the proposal which, as a
result of the acceptance of these parts of the amendments
would read as follows:

formulated in too general a manner,

(cid:145)the request is manifestly unreasonable or formulated in
too general a manner. Where a request for information
is
the public
authority concerned shall ask the applicant to clarify it
and shall assist
soon as
reasonably practicable after the receipt of the request(cid:146).

the applicant

in doing as

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The Commission can also accept the part of amendment
19 which seeks to introduce a new sentence to the last
the Commission
paragraph of Article 3(5). However,
believes
serve its
purpose if it was placed in Article 3(5)(c) new, and if it
was reworded in order to take into account of the wording
of the Aarhus Convention so that it would read as follows:

this amendment would better

that

(cid:145)requiring officials to support the public in seeking access
to information(cid:146).

The part of amendment 20 which seeks to require public
authorities to weigh the interests at stake when the apply
the exception provided for under Article 4(1)(c) of the
is acceptable in principle provided that a
proposal
reference to Article 4(1)(c)
last
sentence which would therefore read as follows:

is added to Article 4(2)

for

refusal

(cid:145)The above-mentioned grounds
to disclose
information shall be interpreted in a restrictive manner(cid:146)
(see amendment 21 under 3.2) (cid:145)In each case mentioned
under Article 4 (1)(c) and (2)(a) to (g), the public interest
served by the disclosure shall be weighed against
the
interest served by the refusal. Access to the requested
interest
information shall be granted if
outweighs the latter interest. Within this framework, and
for the purposes of the application of (f), Member States
shall ensure that the requirements of Directive 95/46/EC
are respected(cid:146).

the public

Consequently, the last sentence of Article 4(1)(c) reading
(cid:145)in each such case,
the public interest served by the
disclosure shall be taken into account(cid:146) should be deleted.

The Commission can also accept in principle the part of
amendment 21 dealing with Article 4(2)(a) provided that it
is reworded as follows to ensure alignment with the
Aarhus Convention:

(cid:145)the confidentiality of the proceedings of public authorities,
where such confidentiality is provided for under national
law(cid:146).

The Commission can also accept the part of amendment
21 dealing with Article 4(2)(g) provided that it is reworded
as
alignment with the Aarhus
follows
Convention:

to ensure

(cid:145)the interests of a third party which has supplied the
information requested without that party being under or
capable of being put under a legal obligation to do so, and
when that party does not consent to the release of the
information(cid:146)

The Commission can accept
in principle the part of
amendment 23 which seeks to require public authorities

making use of Article 4(1)(c) to supply applicants with the
name of the official completing the information requested
and the estimated timetable for its completion provided
that it is placed in the latter Article. It would therefore
read as follows:

(cid:145)the requests concerns material in the course of completion
or internal communications. In the first case, the name of
the official or of
the public authority completing the
material requested and the estimated time needed for its
completion shall, wherever practicable, be provided(cid:146).

The Commission can also accept in principle the last part
of amendment 24. However it considers it does not need
to be repeated again as the ideas in this amendment are
already included in the part of amendment 24 dealing with
Article 5(2) of the proposal.

3.4. Amendments not accepted by the Commission

The first part of amendment 1 and amendment 2 cannot
be accepted as they have no corresponding articles in the
body of the text.

The Commission cannot accept amendment 4 which seeks
to include a reference to future developments in the area
of
information and communication technologies. The
Commission is of the view that it is not appropriate to
refer in a legislation measure to technology that does not
yet exist. The future review of the directive will take into
account any possible development that may take place in
the meantime. Furthermore,
it will be recalled that the
proposal refers to (cid:145)available(cid:146) technology. This is sufficient
to cover the concern behind the amendment.

The main aim of amendment 14 is to add an additional
objective to those pursued by the proposal, that is, to
establish the standards in relation to public access to
environmental information that should apply to EC insti-
tutions. This amendment cannot be accepted as it falls
clearly outside the scope of the directive which applies
only to Member States.

information(cid:146)

(cid:145)environmental

Amendment 15 deals with the definitions laid down in the
proposal. The parts of the amendment dealing with the
definition of
cannot be
accepted. One of the main objectives of the proposal is
to enable ratification by the European Community of the
Aarhus Convention. In order to ensure consistency, defi-
nitions should be kept as closely as possible to the ones
laid down in the Convention. For
the same reasons,
amendment 5 which deals with the corresponding recital
cannot be accepted.

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Amendments 16 and 30 which seek to replace the one
month/two months (for complex requests) deadlines to
supply the information requested by a two weeks/six
weeks (for complex cases) deadline are not acceptable. In
two weeks and 6 weeks for
the Commission’s view,
complex requests are too short deadlines. Amendment 6
dealing with the corresponding recital cannot be accepted
as the modification requested is not reflected in the corre-
sponding article in the body of the text.

Amendment 18 seeks to require public authorities to
supply the information in the form or format requested
by the applicant without exceptions. The Commission
cannot accept this amendment. Public authorities should
be granted a certain degree of flexibility to decide in which
form or format the information should be supplied. It has
to be acknowledged that compliance with certain requests
could be too burdensome for public authorities. For the
same reasons, amendment 7, which deals with the corre-
sponding recital, cannot be accepted.

Amendment 19 defines in excessive details the practical
arrangements under which the information shall be
made effectively available to applicants. The Commission
cannot accept most of this amendment as, in accordance
with the subsidiarity principle,
it is up to the Member
States and not to the Commission to define the practical
arrangement. This is a framework directive. Member States
should be granted a certain degree of flexibility when they
law. For the same
transpose the directive into national
reasons,
recital
the
relating to this provision, cannot be accepted.

amendment 8, which modifies

refusing access to environmental

Amendment 20 deals with the so-called formal grounds
for
information. For
reasons of consistency,
the Commission cannot accept
Indeed, no similar
the amendment.
the first part of
amendment has been tabled in relation to the so-called
substantive grounds for refusal.

interest

in disclosure outweighs

the
and after having weighed the interests at stake.
public
interest
protected by the exception, access to the information
requested will be granted. The Commission therefore
believes that the proposal provides sufficient guarantees
to avoid abusive refusals to disclose information.

the

If

access

to refuse

For the reasons above, the Commission cannot accept the
part of the amendment 21 which seeks to prevent public
authorities from invoking any of the exceptions provided
to information on emissions,
for
discharges and other releases into the environment.
In
certain cases, public authorities should be able to refuse
access
the
to such information, provided that
requirements laid down in the proposal are met. It will
be recalled that the Commission proposal already prevents
public authorities to refuse access to information on
the
and
emissions,
environment which are subject to Community law.

discharges

releases

other

into

all

The Commission can neither
amendment 21 which seeks
dealing with the intellectual property rights.

the part of
to delete the exception

accept

The Commission cannot accept the part of amendment 21
which seeks to delete the reference to Directive 95/46/EC
on personal data. For the sake of clarity and legal certainty
it is appropriate to mention existing Community law in
this area.

Amendment 22 seeks to require Member States to draw up
a list of criteria for the purposes of the application of the
exceptions. Such list should be communicated to the
Commission for
approval. The Commission cannot
accept this amendment. It is up to the Courts and not
to the Commission to give an interpretation of
the
exceptions provided for in the proposal.

The Commission cannot accept the part of amendment 20
which seeks to delete the exception which enables public
authorities to refuse access to internal communications.
This exception is foreseen in the Aarhus Convention. In
certain cases, public authorities should be entitled to refuse
access to specific internal documents.

Amendment 23 seeks to introduce the so-called positive
silence (i.e. failure to provide the requested information
within the deadline laid down in the proposal shall be
deemed positive reply). The Commission cannot accept
this amendment. The proposal already foresees applicants
may make use of the redress mechanisms provided for in
cases of failure to reply within the deadline.

Amendment 21 deals with the so-called (cid:145)substantive(cid:146)
grounds for refusing requests for access to environmental
information. The Commission cannot accept the parts of
the amendments which seek to depart from the exhaustive
list of exceptions provided for in the Aarhus Convention. It
will be recalled that the Commission proposal is in line
with the Aarhus Convention. Furthermore, access to the
requested information will only be refused if disclosure
adversely affects the interests protected by the exceptions

The Commission can neither accept
the last part of
amendment 23 which seeks to require public authorities
to disclose information provided on a voluntary basis by a
third party in such a way that it will respect the anonymity
of that third party. This amendment is not fully compatible
with the Commission proposal which entitles public auth-
orities to refuse access to information if disclosure would
adversely affect
third parties having
supplied information on a voluntary basis.

the interests of

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The part of amendment 24 which seeks to alter the order
of the paragraphs of the Commission proposal has no real
added value. Therefore, the Commission prefers to stick to
its own proposal.

The Commission cannot accept the part of amendment 24
which seeks to prevent public authorities from making
charges when the information is requested for educational
use. The Commission proposal already enables Member
States to define when the cases when charges could be
waived. This is after all a proposal
for a framework
directive.
In accordance with the subsidiarity principle,
Member States should be granted a certain degree of flexi-
bility to transpose the directive into national law.

The parts of amendment 25 which seek to add to new
paragraphs to Article 6 of the Commission proposal on
access to justice cannot be accepted as they seek to
regulate this issue in excessive detail. In accordance with
the subsidiarity principle, the definition of these matters
should be left to the Member States taking into account
the specificity of their national legal systems.

the Commission proposal

The parts of amendment 26 which have not been accepted
in part or in principle tend to define in excessive detail the
way in which Member States should actively disseminate
to the general public the environmental information they
hold. Therefore they are not acceptable. The aim of this
is to lay down a
Article of
to actively
general obligation upon Member States
disseminate
the
directive is a framework directive which does not aim at
regulating in all detail how Member States should comply
with this obligation. The Commission is of the view that a
flexibility should be granted to the
certain degree of
Member States to transpose the directive into national law.

information. However,

environmental

to present proposals relating to the harmonisation of
emissions measurement procedures. The amendment
is
not acceptable as it is unduly burdensome on public auth-
orities. Furthermore, parts of the amendment fall outside
the proposal. For reasons of consistency,
the scope of
amendment 12, which introduces into the proposal a
recital
in
amendment 27, cannot be accepted.

to the new provision referred

relating

the directive

application of

Amendment 28 seeks on the one hand to require Member
States to draw up national reports on the experience
gained in the
and to
communicate them to the Commission on specific dates
(i.e. 31 December 2005 and 30 June 2006). The
is not yet known
amendment
when the directive will be formally adopted. It is more
prudent to stick to the Commission wording ((cid:145)x(cid:146) years
and (cid:145)x(cid:146) years and 6 months after the deadline for trans-
position).

is not acceptable, as it

the Treaty (right of access

On the other hand, it requires the Commission to draw up
a report on the experience gained in the application of the
directive and of the Regulation implementing Article 255
of
the
European Parliament, the Council and the Commission)
together with any proposals for review which it may
consider appropriate. This amendment is not acceptable
as the reference to the Regulation implementing Article
255 of
the
directive.

the ECT falls clearly outside the scope of

to documents of

Amendment 29 seeks to lay down a 12 months deadline
for the Member States to transpose the directive into
national
this
law. The Commission considers
deadline is too short. For this reason, amendment 29 is
not acceptable.

that

Amendment 27 seeks to include a new article in the
proposal dealing with the quality of the information to
to the
be actively disseminated by public authorities
It furthermore requires the Commission
general public.

3.5. Amended proposal

the EC Treaty,
Having regard to Article 250(2) of
Commission modifies its proposal as indicated above.

the