WRITTEN QUESTION E-2789/01 by Hiltrud Breyer (Verts/ALE) to the Commission. Inadequate implementation of the Directive on the freedom of access to information on the environment (90/313/EEC).
Date: 2001-10-09
Institutions: European Parliament, Provisional data
Subjects: EC Directive, Germany, access to information, appeal to the Court (EU), dissemination of EU information, environmental policy, industrial pollution, industrial secret, national implementing measure

6.6.2002

EN

Official Journal of the European Communities

C 134 E/103

(2002/C 134 E/105)

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 Umwelt-
schutz’ 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 (Umwelt-
informationsgebührenverordnung). The level of possible fees has been reduced, the maximum fee has been
limited to € 500. This only applies to federal authorities.

C 134 E/104

Official Journal of the European Communities

EN

6.6.2002

On 1 February 2000, the Commission has applied to the Court of Justice because Germany failed to
3.
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.

(2002/C 134 E/106)

WRITTEN QUESTION E-2792/01

by Baroness Nicholson of Winterbourne (ELDR) to the Commission

Subject: Health implications of mobile phone masts

(9 October 2001)

Does the Commission have any plans to look into the health implications of siting mobile telephone masts
in highly populated residential areas?

Answer given by Mr Byrne on behalf of the Commission

(22 January 2002)

The positioning of mobile phone masts is first and above all a matter between the mobile operators and
local, regional and state authorities. The procedures in use and criteria applied vary largely across Member
States and may include considerations on the possible health effects of electromagnetic radiation, the need
to protect the environment, the need to respect town planning rules etc.

At Community level, Directive 97/33/EC of the Parliament and of the Council of 30 June 1997 on
interconnection in telecommunications with regard to ensuring universal service and interoperability
though application of the principles of Open Network Provision (ONP) (1) stipulates that where facility
sharing can be of benefit for town planning, environmental, economic or other reasons, Member States
and national regulatory authorities may impose sharing arrangements and intervene to resolve disputes
between commercial parties. This provision is expected to be carried over into the new telecommuni-
cations regulatory framework that is currently under discussion in the Council and the Parliament.