Common Position (EC) No 24/2002 of 28 January 2002 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council on public access to environmental information and repealing Council Directive 90/313/EEC
Date: 2002-01-28
Institutions: Council of the European Union
Subjects: access to information, confidentiality, environmental protection, public administration, right to information

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I

(Information)

COUNCIL

COMMON POSITION (EC) No 24/2002

adopted by the Council on 28 January 2002

with a view to adopting Directive 2002/. . ./EC of the European Parliament and of the Council of
. . . on public access to environmental information and repealing Council Directive 90/313/EEC

(2002/C 113 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Having regard to the opinion of
Regions (3),

the Committee of

the

Acting in accordance with the procedure laid down in Article
251 of the Treaty (4),

Whereas:

(1) Increased public access to environmental information and
the dissemination of such information contributes to a
greater
free
exchange of views, more effective participation by the
public in environmental decision-making and, eventually,
to a better environment.

environmental matters, a

awareness of

(2) Council Directive 90/313/EEC of 7 June 1990 on the
freedom of access to information on the environment (5)
initiated a process of openness in relation to public access
to environmental
information which should be fostered
and continued.

(3) Article 8 of

that Directive requires Member States to
in
report to the Commission on the experience gained,
the light of which the Commission is required to make a
report
to the European Parliament and the Council
together with any proposal for revision of the Directive
which it may consider appropriate.

(1) OJ C 337 E, 28.11.2000, p. 156 and OJ C 240 E, 28.8.2001,

p. 289.

(2) OJ C 116, 20.4.2001, p. 43.
(3) OJ C 148, 18.5.2001, p. 9.
(4) Opinion of the European Parliament of 14 March 2001 (OJ C 343,
5.12.2001, p. 177), Council Common Position of 28 January 2002
and Decision of the European Parliament of . . . (not yet published
in the Official Journal).
(5) OJ L 158, 23.6.1990, p. 56.

(4) The report produced under Article 8 of that Directive
identifies concrete problems encountered in the practical
application of the Directive.

(5) On 25 June 1998 the European Community signed the
UN/ECE Convention on Access to Information, Public
Participation in Decision-making and Access to Justice
in Environmental Matters
(‘the Aarhus Convention’).
Provisions of Community law must be consistent with
that Convention with a view to its conclusion by the
European Community.

(6) It is appropriate in the interest of increased transparency
to replace Directive 90/313/EEC rather than to amend it,
so as to provide interested parties with a single, clear and
coherent legislative text.

(7) Disparities between the laws in force in the Member
States concerning access to environmental
information
held by public authorities can create inequality within
the Community as regards access to such information
or as regards conditions of competition.

(8) It is necessary to ensure that any natural and legal person
has a right of access to environmental information held
by or for public authorities without his having to state an
interest.

(9) It

is also necessary to promote the widest possible
systematic availability and dissemination to the public of
environmental information, where available by electronic
means.

(10) The definition of environmental

information should be
clarified so as to encompass information in any form
on the state of the environment, on factors, measures or
activities affecting or likely to affect the environment or
it, on cost-benefit and economic
designed to protect
analyses used within the framework of such measures
or activities and also information on the state of human
health and safety, conditions of human life, cultural sites
and built structures in as much as they are, or may be,
affected by any of those matters.

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expanded

authorities

should be

(11) To take account of the principle in Article 6 of the Treaty
that environmental protection requirements should be
integrated into the definition and implementation of
the definition of
Community policies and activities,
to
public
encompass government or other public administration at
national, regional or local level whether or not they have
specific responsibilities for the environment. The defi-
nition should likewise be expanded to include other
administrative
persons or bodies performing public
functions in relation to the environment under national
law, as well as other persons or bodies acting under their
control and having public responsibilities or functions in
relation to the environment.

so as

(12) Environmental

information which is physically held by
other bodies on behalf of public authorities should also
fall within the scope of this Directive.

(13) Environmental information should be made available to
applicants as soon as possible and within a reasonable
time and having regard to any timescale specified by
the applicant.

(14) Public authorities should make environmental information
available in the form or format requested by an applicant
unless it is already publicly available in another form or
format or it is reasonable to make it available in another
form or format. In addition, public authorities should be
required to make all reasonable efforts to maintain the
them in
information held by or
environmental
forms or
that are readily reproducible and
formats
accessible by electronic means.

for

(15) Member

States

should

practical
arrangements under which such information is effectively
made available, bearing in mind the benefits for the
environment.

determine

the

for environmental

(16) The right of access to environmental information means
that the disclosure of information should be the general
rule and that public authorities should be able to refuse a
request
information in specific and
clearly defined cases. Grounds for refusal should be inter-
preted in a restrictive way, taking into account for the
particular case the public interests served by disclosure.
The reasons for a refusal must be provided to the
and in
applicant within an appropriate
writing or electronically if the request was in writing or
if the applicant so requests.

time-limit

(19) Applicants should be able to seek an administrative or
the acts or omissions of a public

judicial review of
authority in relation to a request.

and to improve

(20) In order to increase public awareness in environmental
matters
environmental protection,
public authorities should as appropriate make available
and disseminate information on the environment which
is relevant to their functions, in particular by means of
tech-
computer
nology, where available.

telecommunication and/or

electronic

(21) This Directive should be subject to a review in the light of
experience and on the basis of reports on the application
of the Directive provided by the Member States.

(22) Since the objectives of the proposed Directive cannot be
sufficiently achieved by the Member States and can
therefore be better achieved at Community level,
the
Community may adopt measures,
in accordance with
the principle of subsidiarity as set out in Article 5 of
the Treaty. In accordance with the principle of propor-
tionality, as set out in that Article, this Directive does not
go beyond what is necessary in order to achieve those
objectives.

(23) The provisions of this Directive shall not affect the right
of a Member State to maintain or introduce measures
providing
to information than
access
required by this Directive,

for broader

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Objectives

The objectives of this Directive are:

(a) to grant a right of access to environmental

information
held by or for public authorities and to set out the basic
terms and conditions of its exercise; and

(b) to promote, as a matter of course, the widest possible
systematic availability and dissemination to the public of
environmental information.

Article 2

Definitions

For the purposes of this Directive:

(17) Public authorities should make environmental information
available in part where it is possible to separate out any
information falling within the scope of the exceptions
from the rest of the information requested.

1.

‘environmental information’ shall mean any information in
written, visual, aural, electronic or any other material form
on:

(18) Public authorities should be able to make a charge for
supplying environmental information but such a charge
should not exceed a reasonable amount. A schedule of
charges
should be published and made available to
applicants.

(a) the state of the elements of the environment, such as air
and atmosphere, water, soil, land, landscape and natural
including wetlands, coastal and marine areas,
sites
biological diversity and its
including
genetically modified organisms, and the interaction
among these elements;

components,

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(b) factors, such as substances, energy, noise, radiation or
waste, including radioactive waste, emissions, discharges
and other releases into the environment, affecting or
likely to affect
environment
referred to in point (a);

elements of

the

the

(c) measures (including administrative measures), such as
policies,
legislation, plans, programmes, environmental
agreements, and activities affecting or likely to affect
the elements and factors referred to in points (a) and
(b) as well as measures or activities designed to protect
those elements;

(d) cost-benefit

and
assumptions used within the
measures and activities referred to in point (c); and

analyses
framework of

economic

other

and
the

(e) the state of human health and safety, conditions of
human life, cultural sites and built structures in as
much as they are or may be affected by the state of
the elements of the environment referred to in point (a)
the matters
or,
referred to in points (b) and (c).

through those elements, by any of

2.

‘Public authority’ shall mean:

(a) government or other public administration at national,

regional or local level;

(b) any natural or legal person performing public adminis-
trative functions under national law, including specific
duties,
in relation to the
services
environment; and

activities or

(c) any natural or legal person having public responsibilities
or functions, or providing public services, in relation to
the environment under the control of a body or person
falling within points (a) or (b).

This definition shall not include bodies or institutions acting
in a judicial or legislative capacity.

3.

‘Information held for a public authority’ shall mean environ-
mental information which is physically held by a natural or
legal person on behalf of a public authority.

4.

‘Applicant’ shall mean any natural or legal person requesting
environmental information.

5.

‘Public’ shall mean one or more natural or legal persons,
legislation or practice,
in accordance with national
and,
their associations, organisations or groups.

Article 3

them to any applicant at his request and without his having
to state an interest.

2.
Subject to Article 4 and having regard to any timescale
specified by the applicant, environmental information shall be
made available to an applicant:

(a) as soon as possible and, at the latest, within one month
after the receipt by the public authority referred to in
paragraph (1) of the applicant's request; or

(b) within two months of the receipt of the request by the
public authority if the volume and the complexity of the
information is such that the one-month period referred to
in point (a) cannot be complied with. In such cases, the
applicant shall be informed as soon as possible, and in any
case before the end of that one-month period, of any such
extension and of the reasons for it.

3.
If a request is formulated in too general a manner, the
public authority shall as soon as possible, and at the latest
within the time-frame laid down in paragraph 2(a), ask the
applicant to specify the request and shall assist the applicant
in doing so, for example by providing information on the use
of the public registers referred to in paragraph 5(c). The public
authorities may, where they deem it appropriate, refuse the
request under Article 4(1)(b).

4. Where an applicant requests a public authority to make
environmental
information available in a specific form or
format (including in the form of copies), the public authority
shall make it so available unless:

(a)

it is already publicly available in another form or format, in
particular under Article 7, which is easily accessible; or

(b) it is reasonable for the public authority to make it available
in another form or format, in which case reasons shall be
given for making it available in that form or format.

all

reasonable

For the purposes of this paragraph, public authorities shall
make
to maintain environmental
information held by or for them in forms or formats that
are readily reproducible and accessible by computer telecom-
munications or by other electronic means.

efforts

The reasons for a refusal to make information available, in full
or in part, in the form or format requested shall be provided to
the applicant within the time limit referred to in paragraph
2(a).

For the purposes of this Article, Member States shall
5.
define the practical arrangements under which environmental
information
practical
arrangements may include:

be made

available.

These

shall

Access to environmental information upon request

(a) the designation of information officers;

1. Member States shall ensure that public authorities are
required, in accordance with the provisions of this Directive,
information held by or for
to make available environmental

(b) the establishment and maintenance of

facilities for the

examination of the information requested;

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(c) publicly accessible lists of public authorities and registers or
lists of the environmental information held by such auth-
orities and by information points;

(e)

intellectual property rights;

(d) requiring officials to support the public in seeking access to

information.

Member States shall ensure that public authorities inform the
public adequately of the rights they enjoy as a result of this
Directive.

Article 4

Exceptions

(f)

the confidentiality of personal data and/or files relating to a
natural person where that person has not consented to the
disclosure of the information to the public, where such
confidentiality is provided for by national or Community
law;

(g) the interests of any person who supplied the information
requested on a voluntary basis without being under, or
capable of being put under, a legal obligation to do so,
unless that person has consented to the release of the
information concerned;

1. Member States may provide for a request for environ-
mental information to be refused if:

(h) the protection of

the

environment

to which such

information relates, such as the location of rare species.

(a) the information requested is not held by or for the public
authority to which the request is addressed. In such a case,
where that public authority is aware that the information is
held by or for another public authority, it shall, as soon as
possible, transfer the request to that other authority and
inform the applicant accordingly or inform the applicant of
the public authority to which it believes it is possible to
apply for the information requested;

(b) the request is manifestly unreasonable or formulated in too

general a manner;

(c) the request concerns material in the course of completion,
internal communications or unfinished documents and
data, taking into account the public interest served by the
disclosure.

2. Member States may provide for a request for environ-
mental
the
information to be
information would adversely affect:

refused if disclosure of

(a)

the confidentiality of the proceedings of public authorities;

(b) international relations, public security or national defence;

(c)

the course of justice, the ability of any person to receive a
fair trial or the ability of a public authority to conduct an
enquiry of a criminal or disciplinary nature;

(d) the confidentiality of commercial or industrial information
where such confidentiality is provided for by national or
Community law to protect a legitimate economic interest,
including the public interest to maintain statistical confi-
framework,
dentiality
information on emissions which is
the
for
relevant
protection of the environment shall be disclosed;

secrecy. Within this

and tax

The aforementioned grounds for refusal shall be interpreted in
a restrictive way, taking into account for the particular case,
the
the public interest served by disclosure and whether
information
the
into
relates
environment.

emissions

requested

to

Within this framework, and for the purposes of the application
of point (f), Member States shall ensure that the requirements
of Directive 95/46/EC of the European Parliament and of the
Council of 24 October 1995 on the protection of individuals
with regard to the processing of personal data and on the free
movement of such data (1) are complied with.

Environmental

3.
information held by or for public auth-
orities which has been requested by an applicant shall be made
available in part where it
is possible to separate out any
information falling within the scope of paragraphs 1(c) or 2
from the rest of the information requested.

A refusal to make available all or part of the information
4.
requested shall be notified to the applicant in writing or elec-
tronically, if the request was in writing or if the applicant so
requests, within the time limits referred to in Article 3(2)(a) or,
as the case may be, (b). The notification shall state the reasons
for
review
information on the
procedure provided for in accordance with Article 6.

refusal and include

the

Article 5

Charges

1.
Public authorities may make a charge for supplying any
environmental information but such charge may not exceed a
reasonable amount. No additional charge shall be made for
consulting the requested information in situ.

(1) OJ L 281, 23.11.1995, p. 31.

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Public authorities intending to make such a charge for
2.
supplying information shall publicise and make available to
applicants a schedule of charges which may be levied,
indi-
cating the circumstances in which they may be levied or
waived and when the supply of information is conditional on
the advance payment of such a charge.

(a) texts of international treaties, conventions or agreements,
and of Community, national, regional or local legislation,
on the environment or relating to it;

(b) policies,

plans

and

programmes

relating

to

the

environment;

3.
Access to any public registers or lists established and
maintained as mentioned in Article 3(5)(c) shall be free of
charge.

Article 6

Access to justice

1. Member States shall ensure that any applicant who
considers that his request for information has been ignored,
inadequately
wrongfully refused (whether in full or in part),
answered or otherwise not dealt with in accordance with the
provisions of Articles 3, 4 or 5, has access to a procedure in
which the acts or omissions of the public authority concerned
can be reconsidered by that or another public authority or
reviewed administratively by an independent and impartial
body established by law. Any such procedure
shall be
expeditious and either free of charge or inexpensive.

2.
In addition to the review procedure referred to in
paragraph 1, Member States shall ensure that an applicant
has access to a review procedure before a court of law or
another independent and impartial body established by law,
the public authority
in which the acts or omissions of
concerned can be reviewed and whose decisions may become
final. Member States may furthermore provide that third parties
incriminated by the disclosure of information may also have
access to legal recourse.

3.
Final decisions under paragraph 2 shall be binding on the
public authority holding the information. Reasons shall be
least where access to information is
stated in writing, at
refused under this Article.

Article 7

Dissemination of environmental information

1. Member States shall
take the necessary measures to
ensure that public authorities organise the environmental
information which is relevant to their functions and which is
held by or for them, with a view to its active and systematic
dissemination to the public,
in particular by means of
computer
telecommunication and/or electronic technology,
where available.

The information made available by means of computer tele-
communication and/or electronic technology need not include
this
information collected before the entry into force of
Directive unless it is already available in electronic form.

The information to be made available and disseminated

2.
shall be updated as appropriate and shall include at least:

(c) progress

the items
reports on the implementation of
referred to in points (a) and (b) when prepared by public
authorities;

(d) the reports on the state of the environment referred to in

paragraph 3;

(e) data or summaries of data derived from the monitoring of
activities affecting, or likely to affect, the environment.

3. Without prejudice to any specific reporting obligations
laid down by Community legislation, Member States shall
take the necessary measures to ensure that national, and,
where appropriate, regional or local reports on the state of
intervals not
the
include information
exceeding four years; such reports shall
on the quality of, and pressures on, the environment.

are published at

environment

regular

4. Without prejudice to any specific obligation laid down by
Community legislation, Member States shall take the necessary
measures to ensure that, in the event of an imminent threat to
human health or the environment, whether caused by human
activities or due to natural causes, all information held by or
for public authorities which could enable the public likely to be
affected to take measures to prevent or mitigate harm arising
from the threat is disseminated, immediately and without delay.

5. Member States shall, so far as is practicable, ensure that
any information made available or disseminated, or reports
in accordance with this Article are clear and
published,
comprehensible.

The exceptions in Article 4(1) and (2) shall apply in

6.
relation to the duties imposed by this Article.

7. Member States may satisfy the requirements of
this
Article by creating links to Internet sites where the information
can be found.

Article 8

Review procedure

Not later than . . . (*), Member States shall report on the

1.
experience gained in the application of this Directive.

They shall communicate the report to the Commission not
later than . . . (**).

No later than . . . (***), the Commission shall forward to the
Member States a guidance document setting out clearly the
manner in which it wishes the Member States to report.

(*) Nine years after the date of entry into force of this Directive.
(**) Nine years and six months after the date of entry into force of this

Directive.

(***) One year after the date of entry into force of this Directive.

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In the light of experience, the Commission shall make a
2.
report to the European Parliament and the Council together
with any proposal for revision, which it may consider appro-
priate.

References to the repealed Directive shall be construed as
referring to this Directive and shall be read in accordance
with the correlation table in the Annex.

Article 11

Entry into force

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

Article 12

Addressees

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

Article 9

Implementation

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive
forthwith inform the
Commission thereof.

. . . (*). They

shall

by

When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.

Article 10

Repeal

Directive 90/313/EEC is repealed with effect from . . . (*).

(*) Two years after the date of entry into force of this Directive.

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ANNEX

CORRELATION TABLE

Directive 90/313/EEC

This Directive

Article 1

Article 2(a)

Article 2(b)

—

—

—

Article 3(1)

Article 3(2)

Article 3(3)

Article 3(4)

—

—

—

Article 4

—

Article 5

—

—

Article 6

Article 7

—

—

—

—

Article 8

Article 9

Article 10

—

—

Article 1(a)

Article 1(b)

Article 2(1)

Article 2(2)

Article 2(3)

Article 2(4)

Article 2(5)

Article 3(1) + Article 3(5)

Article 4(2) + Article 4(3)

Article 4(1)(b) and (c)

Article 3(2) + Article 4(4)

Article 4(1)(a)

Article 3(3)

Article 3(4)

Article 6(1) + Article 6(2)

Article 6(3)

Article 5(1)

Article 5(2)

Article 5(3)

Article 2(2)(c), Article 3(1)

Article 7(1), (2) and (3)

Article 7(4)

Article 7(5)

Article 7(6)

Article 7(7)

Article 8

Article 9

Article 12

Article 10

Article 11

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 29 June 2000, the Commission sent the Council a proposal for a European Parliament and
Council Directive on public access to environmental information (1), based on Article 175(1) of the
EC Treaty.

2. The European Parliament adopted a resolution on 14 March 2001 (2).

The Economic and Social Committee issued its opinion on 29 November 2000 (3). The Committee
of the Regions gave its opinion on 14 February 2001 (4).

3. Following these opinions, the Commission forwarded its amended proposal to the Council on

7 June 2001 (5).

4. On 28 January 2002 the Council adopted its Common Position in accordance with Article 251(2)

of the Treaty.

II. OBJECTIVE

The Commission proposal aims at replacing Directive 90/313/EEC on the freedom of access to
information on the environment (6) by a new Directive that would take into account experience in
applying the old Directive, the case-law of the Court of Justice, the new information and communi-
cation technologies and the ECE Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters, adopted at Aarhus on 25 June
1998. This ‘Aarhus’ Convention was signed by all Member States and by the Community.
It
entered into force on 30 October 2001. So far, Denmark and Italy have ratified that Convention.

The proposed Directive would strongly widen the right of access to environmental
information
contained in Directive 90/313/EEC. This right consists of a passive right, under which administrations
must provide information on request, and of an active right, under which administrations must
spontaneously disseminate certain pieces of
information, preferably on the Internet. This wider
information should contribute to a greater public awareness and interest for environmental matters
and to a more efficient public participation in the making of environmental decisions.

As a complement to this proposal, the Commission submitted on 19 January 2001 a proposal for a
Directive of the European Parliament and of the Council providing for public participation in respect
of the drawing up of certain plans and programmes relating to the environment and amending
Council Directives 85/337/EEC and 96/61/EC (7). This proposal aims at implementing the second
pillar on public participation of the Aarhus Convention.

III. ANALYSIS OF THE COMMON POSITION

1. The Council's Common Position, while maintaining the approach proposed by the Commission,
modifies the provisions of the proposal in order to clarify or to strengthen them or to make them
more practicable. Many modifications aim at
the Aarhus
Convention.

reinstating the original

text of

(1) OJ C 337 E, 28.11.2000.
(2) OJ C 343, 5.12.2001, p. 177.
(3) OJ C 116, 20.4.2001, p. 43.
(4) OJ C 148, 18.5.2001, p. 9.
(5) OJ C 240 E, 28.8.2001, p. 289.
(6) OJ L 158, 23.6.1990, p. 56.
(7) OJ C 154 E, 29.5.2001, p. 123.

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The Common Position widens the definition of ‘information relating to the environment’ contained
in Directive 90/313/EEC so as to cover not only written, visual, aural or data-base information, but
also electronic information. The definition not only covers the elements of the environment and
the activities and measures affecting or protecting them, but also genetically modified organisms,
the interaction among the above elements, economic analyses and the state of human health,
conditions of life, cultural sites and built structures affected by the environment.

Where the former Directive only addressed public administrations with responsibilities relating to
the environment and private natural or legal persons having public responsibilities in relation to
the environment under the control of administrations, the Common Position also covers all
governments and public administrations as well as private persons independently performing
public administrative functions in relation to the environment. It also adds that public authorities
must make available environmental information held on their behalf by natural or legal persons.

2. Regarding the ‘passive right of information’, the Common Position shortens from two months to
one month the period within which information must in principle be provided. It also requests
providing the information in the format requested by the applicant, unless it is already publicly
available and unless it is reasonable to provide it in another form, and requests defining practical
arrangements for making the information available, such as information officers and facilities for
examination in situ. If the requested information is held by another authority, the request has to be
transferred to that authority or the applicant has to be informed of the identity of the authority
that is believed to hold the information. A refusal must be notified in writing if the request was in
writing or if the applicant requested a written reply. If a request is formulated in a too general
manner, the public authorities will within the one-month period ask the applicant to specify his
request and assist him in doing so.

As under the previous Directive, charges must be publicised and be of a reasonable amount. The
Common Position adds that they may not cover the consultation of public registers nor the
consultation in situ of the information.

The administrative or judicial review of Directive 90/313/EEC is replaced by an administrative and
judicial review in two stages.

3. Regarding the ‘active right of information’, Directive 90/313/EEC only required providing the
public with general information on the state of the environment by such means as the periodic
publication of descriptive reports. The Common Position aims at disseminating, in addition, legal
texts, policies, progress reports, data from monitoring, information about preventing or mitigating
harm arising from imminent threats to human health or the environment, etc. through several
means, but in particular, through telecommunication technology.

4. As under the previous Directive, the exceptions cover unfinished documents, internal communi-
security, matters sub judice, commercial,
intellectual property rights and the

cations,
industrial, personal and environmental confidentiality,
protection of the environment itself.

the confidentiality of public proceedings,

5. In a public statement for the minutes, the Council agrees to undertake steps in order to apply to
the Community's institutions the same rules as those laid down in the ‘information’ pillar of the
Aarhus Convention and calls on the Commission to present a proposal for that pillar, taking into
consideration the more extensive requirements of the present Directive. This should contribute to
enabling the Community to ratify the Aarhus Convention.

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IV. AMENDMENT BY THE EUROPEAN PARLIAMENT ACCEPTED AS SUCH BY THE COUNCIL

The Common Position integrates amendment 3 to recital 8 on extending the right of access to
persons living outside the Community (also accepted by the Commission).

V. AMENDMENTS BY PARLIAMENT ACCEPTED IN A DIFFERENT FORM

1. Amendment 1 to recital 1 on the aims of the Directive (partly accepted by the Commission): the
Council retained, in a more logical sequence, the essential elements of the amendment, i.e. increase
of access to information, awareness of environmental matters, free exchange of views, the more
effective participation of the citizens and the improvement of the environment. The Council did
not retain the elements that had no corresponding rules in the Articles, such as good adminis-
tration and improved implementation of Community legislation. The Council added the idea of
dissemination of information so as to cover the active information as well.

2. Amendment 17 for a new Article 3(2), second paragraph on clarifying unclear requests (accepted in
principle by the Commission): the Common Position contains a new Article 3(3) that takes
over all the elements of the amendment, while adding that clarification must be sought as soon
as possible and in any case before the end of the one-month period for replying a request. The
wording was derived from Regulation (EC) No 1049/2001 regarding public access to European
Parliament, Council and Commission documents (1).

VI. AMENDMENTS BY PARLIAMENT PARTLY ACCEPTED BY THE COUNCIL

1. Amendment 9 concerning recital 18 (recital 16 of

(partly accepted by the
Commission): the Council accepted the main idea according to which disclosure should be the
general rule, as well as the deletion of the reference to Directive 95/46/EC.

the Common Position)

2. Amendment 13 concerning recital 24 (recital 21 of the Common Position) (partly accepted by the
Commission): the Council included the idea of evaluating the Directive on the basis of national
reports. The idea of a Commission evaluation report is included in Article 8. The suggestion of
four-yearly reportings was not followed.

3. Amendment 15 concerning Article 2 (definitions) (Commission position in line with Council position):

— the Common Position integrates the amendment

wetlands and coastal and marine areas are covered by the notion of
information’,

to paragraph (1)(a) which clarifies that
‘environmental

— concerning Article 2(1)(b), the Council did not accept the reference to nuclear fuel and energy
as they do not appear in Aarhus and as these elements are covered by ‘energy, radiation and
radioactive waste’. The Council deleted altogether the words ‘and/or human health and safety’
because they are already covered by point (e) and do not appear in Aarhus Article 2(3)(b),

— the additions to paragraph 1(d), (e) and (f) were not accepted as they are not mentioned in
Aarhus and as they would widen the scope of the Directive too much (‘reports’, ‘indirectly’), or
are not affected by the environment (food safety),

(1) OJ L 145, 31.5.2001, p. 43.

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— in line with the amendment, the Council reintroduced, into paragraph 2, the Aarhus definition
of ‘public authority’, sharing Parliament's reluctance to assimilate to a public authority services
of a general economic interest such as transport, waterworks or telephone. On the other hand,
the Council did not accept including in point (a) advisory bodies as this would expand the
scope of the Directive too much and would give rise to the serious problem of designating
those bodies,

— the modification of the last subparagraph of paragraph 2 on judicial or legal bodies was not
accepted. The Council returned to the wording of Aarhus and also felt that the text proposed
by Parliament would create different regimes between the Member States,

— on a new paragraph 2a, the Council felt the proposed definition of ‘information held by’ to be
rather confusing but, recognising the need for clarifying that term, made an addition to Article
2(3) that explains that ‘held by’ means ‘physically held’.

4. Amendment 19 concerning Article 3(5) on practical arrangements for making passive information available

to the public (Commission position in line with Council):

— the Council did not accept the modification to the introductory subparagraph and the addition
to point (b) containing an obligation to apply cumulatively all the points, as this may be too
burdensome and would limit the freedom of the Member States to select the most suitable
practical arrangements too much,

— the Common Position does not integrate the proposed point (ba) on replacing information
points by lists indicating where information can be found and on placing them on the Internet,
because of the enormous amount of work this would involve,

— the last part of Parliament's suggestion on helping the public was accepted and inspired the

Council to add a new point (d).

5. Amendment 20 concerning Article 4(1) on refusal of information (Commission position in line with

Council for indents 1 to 3):

— the change in the introductory sentence was not accepted as the exceptions could also address
bodies not covered by the definition of ‘public authority’ such as private bodies holding the
information for an authority,

— the Council accepted the idea in point (b) of helping the applicant to improve the formulation

of his request through the new paragraphs 3 and 5(d) of Article 3,

— the Council did not accept deleting the confidentiality of internal communications in point (c),
which is also protected by Aarhus Article 4(3)(c), and also maintained the reference to
unfinished documents and data contained in Directive 90/313/EEC, Article 3(3),

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— regarding the same point (c), the Council did not accept replacing the idea of taking into
account the public interest by the concept of weighing the public interest in unveiling the
information against the interest served by the refusal: such weighing is not contained in
Aarhus; it is a delicate exercise that could lead to difficult court cases; and there are many
cases where confidentiality is so absolute that weighing cannot take place (e.g. secrecy of
judicial instruction).

6. Amendment 21 concerning Article 4(2) on exceptions:

— the Council did not accept restricting the confidentiality of public proceedings to the cases
required by law (point (a). The Council and the Commission did not accept restricting the
confidentiality in international relations in point (b) to cases of vital interest, nor abandoning
intellectual property rights point
this is provided for in Aarhus and Directive
90/313/EEC,

(e) as all

— regarding point (d) and the new last subparagraph of paragraph 2, the Commission proposed
that information about emissions into the environment which are subject to provisions of
Community legislation should be divulged, even where they are covered by commercial and
industrial confidentiality. Parliament went further and proposed lifting all other types of confi-
dentiality as well. The Commission disagreed. For its part, the Council returned to the very
wording of Aarhus Article 4(4)(d) according to which, within the framework of the commercial
and industrial confidentiality, information on emissions which is relevant for the protection of
the environment shall be disclosed,

— the Council accepted the amendments concerning the protection of personal data in point (f),

while adopting the wording of Aarhus Article 4(4)(f),

— the Common Position follows the amendment on the protection of persons providing
(g), while providing for the slightly stronger protection of Aarhus

information in point
Article 4(4)(g),

— the text also integrates the proposed sentence requiring a restrictive interpretation of the

exceptions in line with the end of Aarhus Article 4(4) in fine,

— regarding the weighting of public and private interests (paragraph 2, last subparagraph of the
Commission proposal), Parliament proposed a stronger wording with which the Commission
disagreed. The Council however deleted altogether any reference to weighting and reintroduced
the Aarhus idea of taking into account public interest for the reasons outlined under Section
VI(5), last indent above.

7. Amendment 25 concerning Article 6 on access to justice (The Commission in line with Council):

— the Common Position takes up, in paragraphs 1 and 2, the proposed requirement of inde-
pendence and impartiality of the administrative and judicial bodies reviewing a decision,

— like the Commission, the Council considers the proposed new paragraphs 2a and 3a to be of
an excessive detail. In accordance with the subsidiarity principle, the right of information of the
courts and the recovery of legal costs should continue to be regulated by the legal systems of
the Member States.

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8. Amendment 28 concerning Article 8 on the review of

the Directive

(partially accepted by the

Commission):

— regarding the dates, the Council clearly believes it to be more prudent to work with time-spans
after entry to force rather than establishing fixed dates. It also believes that 31 December 2005
is too soon for establishing national reports on the implementation of the Directive and prefers
nine years after entry into force,

— the Council agreed with a guidance document on the implementation of the Directive,

— the Council agreed with the idea that principles of the Directive should also be applied by the
Community institutions. The Council however considers that procedural steps aiming at
bringing this matter forward should be laid down in a public statement for the Council
minutes as referred to in Section III(5). Making a provision inside the Directive falls clearly
outside the scope of this Instrument, which only applies to the Member States. Parliament
could be associated with the Council statement if it wishes.

VII. AMENDMENTS BY PARLIAMENT NOT ACCEPTED BY THE COUNCIL

(Most amendments were also not accepted by the Commission, who however accepted parts of
amendments 11, 14, 24 and 26):

1. amendment 2 to recital 2 (change of mentality): the Council felt that the new text delivered, with a

more complex wording, basically the same message as the Commission's text;

2. amendment 4 to recital 9 (future technologies): it could be imprudent to impose unknown tech-

nologies (see point 12);

3. amendment 5 to recital 10 (definition of environmental information): This widens the scope too much

(see Section VI(3), indent 3 of Article 2(1)(d);

4. amendment 6 to recital 14 was rejected as Article 3(2) does not require immediate delivery of the

information;

5. amendment 7 concerning recital 15 on the format of the information: see motivation under amendment

18, first part (point 12);

6. amendment 8 concerning recital 17: the modification merely repeated Article 3(5)(c) without moti-

vating it;

7. amendment 10 to recital 19: the Council deleted this recital altogether (see Section VI(6), indent 2);

8. amendment 11 to recital 21 on charges (recital 18 of the Common Position): see point 15 below on

amendment 24 concerning Article 5;

9. amendment 12 for a new recital 23a on the quality of the information was not accepted for the same

reasons as for not accepting amendment 27 for a new Article 7a (Section VII(17));

10. amendment 14 to Article 1 (objectives): the amendment to point (a) was not considered to be very
relevant. The Council deleted the Commission's text concerning the use of modern technologies
in point (b) as this is not an objective but only a means towards that objective. On the proposed
new point (ba) that the Directive should establish the standard for access to information from the
Union's institutions, see Section VI(8) indent 3 above;

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11. amendments 16 and 30 concerning Article 3(2)(a) and (b) were rejected as it is often impossible, in
particular in smaller services, to reduce from one month to two weeks the deadline for replying
to ordinary requests for information and from two months to six weeks the deadline for complex
requests;

12. amendment 18, concerning the form of the replies in Article 3(4): regarding the first part of the
amendment, the Council maintained point (a) as the applicants should be encouraged first to
address the active information systems referred to in Article 7. It also maintained point (b) of the
Commission proposal as it is clearer than the wording of Parliament obliging the authorities
wherever possible to reply in the form requested by the applicant.

Regarding the second part, the Council felt that it could be imprudent to ask the Member States
to adopt future communication technologies without knowing what they will be and how much
they will cost. Such commitments should be imposed through future amendments to the
Directive. In the meantime, Member States remain free to adopt future technologies if they
consider this to be useful;

13. Amendment 22 for a new Article 4(2a) requesting Member States to establish criteria for handling
exceptions was rejected as it would create new bureaucracy and as it is up to each administration,
under the control of the courts, to interpret the exceptions in accordance with the national laws
that will implement the Directive;

14. Amendment 23 for additions to Article 4(4) according to which failure to reply in time should imply a
commitment to provide the information was not accepted as such failure should rather give raise to
the sanctions in Article 6.

Concerning the second part, the idea of giving the name of the person or authority in charge of
material under consideration does not appear in Aarhus and may not be practicable and could
therefore be part of the optional practical arrangements in Article 3(5).

On the new paragraph 4a, the anonymity of informants is already covered by Article 4(2)(g);

15. amendment 24 concerning Article 5 on charges changes the order of the sentences without obvious
need. The Council could not accept the new idea that charges may not cover time spent on
searches, nor the idea that information for educational purpose shall be free of charge: searches
may very time-consuming and costly, freedom of charge may give rise to frivolous requests for
information and the notion of ‘education’ is very vague;

16. amendment 26 concerning Article 7 on the active information concerns matters that are better left to
the individual Member States to decide on. The amendment would impose highly time-
consuming tasks (establishing the databases and registers in the first part of the amendment)
or putting data on the Internet that are so detailed and voluminous that they should rather be
subject to the passive information (the authorisations and studies in the second part). The words
‘at least’ were however added to the opening sentence of paragraph 2;

17. amendment 27 for a new Article 7a on the quality of environmental information: paragraphs 1 and 2,
which oblige the information to be accurate and up-to-date and to specify the measurement
methods used in information in factors and emissions, are unduly burdensome on public auth-
orities. Moreover, accurateness of data is often impossible to guarantee. Paragraph 3, which
concerns the harmonisation of emission measurement procedures, falls outside the scope of
the Commission proposal;

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18. amendment 29 of Article 9 proposes the implementation of the Directive 12 months after publi-

cation. The Council insists that two years are necessary.

VIII. OTHER AMENDMENTS INTRODUCED BY THE COUNCIL

1. The preamble

Recitals 9, 11, 12 (ex-13), 13 (ex-14), 14 (ex-15), 16 (ex-18), 18 (ex-21), 20, 21 and 22 (ex-23, 24
and 25) were adapted to the changes in the text. For the same reason, recitals 12 and 19 of the
proposal were deleted. Recital 23, which notes that Member States may provide for a broader
access to information, is new.

2. Article 1(b) on the objectives

The Council replaced the Commission proposal's factual description of the aims of the active
information (‘to ensure that environmental information is made available’) by a more proactive
formulation (‘to promote the widest possible availability’). The Council also deleted the
Commission's text concerning the use of modern technologies as this is not an objective but
only a means towards the objective of wide information.

3. Article 2 on definitions

In the introductory sentence of paragraph 1, the unclear word ‘accessible’ was replaced by the
word ‘material’ appearing in Aarhus Article 2(3).

In paragraph 1, the points (b) on factors and (c) on emissions were merged.

In paragraph 3, the Council explained that ‘information held’ means ‘physically held’ and deleted
the Commission proposal's limitative requirement for an arrangement between the holder and an
authority.

The Council added the definition of ‘public’ contained in Aarhus (paragraph 5).

4. Article 3 on ‘passive information’

The Council deleted paragraph 3 of the proposal, which instructed authorities to take into account
specific time-scales specified by applicants alleging specific purposes, but modified the introductory
sentence of paragraph 2 in the sense that the authorities must take into account any time-scale
specified by any applicant, whether or not it is set for specific purposes.

In paragraph 2(a), the Council substituted for the word ‘concerned’, the words ‘referred to in
in order to make it clear that the one- (or two) month period starts running
paragraph 1’,
from the moment the responsible authority, and not any other authority, has received the
application. Where an application was addressed to the wrong authority, the latter must, under
Article 4(1)(a), as soon as possible transfer the request to the competent authority or inform the
applicant of the identity of the competent authority.

A reference to Article 7 was added to point 4(a) in order to clarify that information need not be
given if it is available through active information.

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5. Article 4 on exceptions

The Council formulated point 1(a) in a more objective manner (‘is aware that the information is
held’) and added the option of informing the applicant of the competent authority.

On 2(d), the Common Position clarifies that statistical confidentiality and tax secrecy may also be
part of the commercial or industrial confidentiality.

In line with Aarhus Article 4(7), the Council restricted the requirement for replying in writing
contained in paragraph 4 to the cases where the request was in writing or where the applicant
requested a written reply.

6. Article 5 on charges

The Council transformed the proposed prohibition of advance payment for information into an
option as applicants often forget or refuse to take the information after the effort of searching has
been made. On the other hand, the Council provided that such requirement has to be announced
beforehand.

7. Article 6 on access to justice

The Council swapped the sequence of paragraphs 1 and 2 so that the first paragraph refers to
administrative review and the second to judicial review.

The Council replaced paragraph 3 of the proposal by Aarhus Article 9(1), last subparagraph.

8. Article 7 on dissemination of environmental information

The Common Position added to paragraph 1, subparagraph 1, that the authorities should only
provide information that is relevant for their functions. The new subparagraph 2 of paragraph 1
excludes from electronic dissemination information that was not available in electronic form before
the entry into force of the Directive.

In the introductory sentence of paragraph 2, the Council introduced the obligation of updating the
information as appropriate, in line with Aarhus Article 5(1)(a).

In point (e) of paragraph 2, the Common Position provides for the possibility of divulging
summaries of data,
information or the
in order to avoid putting on the Internet confidential
huge amounts of data that are often collected during environmental monitoring.

The last sentence of paragraph 2 (paragraph 1 of the Commission proposal) on maintaining
information in computerised form was deleted. In return, the opening sentence states that the
information should be organised with a view to its computerised dissemination, where available.

The Council added a new paragraph 7 enabling the Member States to satisfy the active information
obligations through the creation of links to Internet sites.

IX. CONCLUSION

The Common Position aims at giving the public the widest possible access to environmental
information while respecting the confidentiality of certain data and the need to avoid large and
costly increases of work for the public administrations. The Common Position also reverts in many
cases to the wording of the Convention of Aarhus.

The Commission accepted the Common Position.