Opinion of the European Economic and Social Committee on the ‘Proposal for a Regulation of the European Parliament and of the Council on the application of the provisions of the Århus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to EC institutions and bodies’ (COM(2003) 622 final - 2003/0242(COD))
Date: 2004-04-29
Institutions: European Economic and Social Committee
Subjects: access to EU information, access to the courts, environmental protection, international convention, transparency in decision-making

C 117/52

EN

Official Journal of the European Union

30.4.2004

Opinion of the European Economic and Social Committee on the ‘Proposal for a Regulation of the
European Parliament and of the Council on the application of the provisions of the Århus Conven-
tion on Access to Information, Public Participation in Decision-making and Access to Justice in
Environmental Matters to EC institutions and bodies’

(COM(2003) 622 final - 2003/0242(COD))

(2004/C 117/13)

On 7 November 2003, the Council decided to consult the European Economic and Social Committee,
under Article 175(1) of the Treaty establishing the European Community, on the ‘Proposal for a Regulation
of the European Parliament and of the Council on the application of the provisions of the Århus Conven-
tion on Access to Information, Public Participation in Decision-making and Access to Justice in Environ-
mental Matters to EC institutions and bodies’ (COM(2003) 622 final - 2003/0242(COD)).

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 4 March 2004. The rapporteur was Mrs
Sánchez Miguel.

At its 408th plenary session of 28 and 29 April 2004 (meeting of 29 April 2004) the European Economic
and Social Committee adopted the following opinion by 68 votes to six, with seven abstentions.

1.

Introduction

1.1
EU environmental policy, as laid down in Article 6 of
the EC Treaty, and in particular the Community objective of
promoting sustainable development, require European citizens
to feel fully informed and involved regarding its implementa-
tion. For this reason, DG Environment has – through a series
of mechanisms,
laws, communications, conferences, etc. –
stepped up the information and participation of environmental
policy stakeholders.

1.2
Until today, most mechanisms were based on the intro-
duction of provisions on public information and participation
and, to a lesser extent, access to justice in respect of environ-
mental matters.

the EC Treaty,

According to Article 175(1) of

the
1.3
Commission is competent to adopt measures to ensure that
environmental policy objectives are met. Thus the provisions
on public participation should serve to promote and improve
environmental protection. It should be pointed out that this
information and consultation mechanism is already applied to
other Community policies, in particular the CAP and industrial
policy. Given the impact these policies have on sustainable
development,
it is essential that they are implemented in a
transparent manner and that information is provided not only
for stakeholders, but also for the public as a whole.

1.4
To date, the following legislation has promoted public
information and participation regarding environmental matters:

— Regulation (EC) No 1049/2001 of the European Parliament
and of the Council of 30 May 2001 regarding public access
to European Parliament, Council and Commission docu-
ments (1);

— Directive 2003/4/EC on public access to environmental

information (2);

— Directive 2003/35/EC providing for public participation in
respect of the drawing up of certain plans and programmes
relating to the environment (3).

1.5
In 1998, the European Community signed the Conven-
tion on Access to Information, Public Participation in Decision-
making and Access to Justice in Environmental Matters (‘the
Århus Convention’). This reaffirmed the objective of stepping
up the involvement of European citizens in environmental
matters, with a view to encouraging them to participate more
fully in conserving and protecting their natural environment
and thereby promoting sustainable development in Europe.

1.6
The current legal situation – characterised by the fact
that not all the Member States have ratified the Århus Conven-
tion (4) - calls for action in two areas. Firstly, a legal instrument
(Regulation) is needed to ensure that the requirements of the
Convention on access to information, public participation in
decision-making and access to justice are fully applied to the
Community institutions and bodies. Secondly, the provisions
aimed at the Member States must be supplemented with a
proposal for a Directive on access to justice which incorporates
the relevant provisions of the Århus Convention.

(1) OJ L 145 of 31.5.2001, p. 43. The Commission also adopted a
Communication on Towards a reinforced culture of consultation
and dialogue - General principles and minimum standards for
consultation of interested parties by the Commission – COM (2002)
704 final of 11.12.02.

(2) OJ L 41 of 14.2.2003, p. 26.
(3) OJ L 156 of 25.6.2003, p. 17.
(4) It has been ratified by the following countries: Portugal, Belgium,

France, Denmark and Italy.

30.4.2004

EN

Official Journal of the European Union

C 117/53

2. Gist of the proposal for a Regulation

The proposed Regulation aims to apply the Århus
2.1
Convention to the competent bodies of the EU, by introducing
the necessary requirements for access to information, participa-
tion and justice in environmental matters. It therefore defines
all those concepts relating to the subject matter of the proposed
Regulation, as well as the reference bodies that will be subject
to the obligations outlined below. It is important to point out
that one of the definitions refers to environmental law.

the

of Regulation

Access to environmental
provisions

information (Articles 3 to 7)
2.2
incorporates
(EC) No.
1049/2001/EC, which is now extended to all Community insti-
tutions and bodies that perform an environmental function and
not only the Parliament, Council and European Commission.
These bodies have a responsibility to provide environmental
information and must
therefore find the most appropriate
means of making this information available to the public and
continuously updating it by whatever means available, prefer-
ably by public telecommunication networks. This will allow
interested parties to have rapid access to the information they
require. The following criteria must also be met with regard to
information:

— information must be accurate and up to date;

— interested parties must have access to information so that

requests for information can be dealt with quickly;

— the competent authorities must cooperate in providing
information in the event of an environmental emergency.

2.3
Article 8 deals with public participation and sets out the
conditions under which the public has a right to participate in
the preparation of plans and programmes relating to the envir-
onment, when such plans and programmes are prepared by
Community institutions and bodies and required by a provi-
sion. This enables qualified members of the public and environ-
mental organisations to participate at an early stage, before
such plans and programmes are adopted.

2.4
Access to justice is available to any qualified entity with
legal standing. In other words, only those organisations recog-
nised in accordance with Articles 12 and 13 are entitled to
institute proceedings before the EU Court of Justice. However,
as laid down in Article 9, a qualified entity with legal standing
may also request a review of the administrative actions of the
if substantiated, all
Community institutions and bodies and,
actions in breach of environmental
law can be suspended,
without the need for legal proceedings.

of confidential information. Instruments such as access to infor-
mation, participation in the preparation of plans relating to the
environment and subsequent access to justice will not only
help step up compliance with legislation, but will also improve
public awareness and education concerning the conservation
and use of existing natural resources.

3.2
In this new phase, with ten new countries about to join
the EU, these new harmonising measures have to be proposed
by the Commission. It is also essential for the Århus Conven-
tion to be ratified by all those European countries that signed
it. It should also be ratified by the European Community, as
this will increase instruments for environmental protection at
world level,
in particular those laid down in international
conventions.

3.3
This new legal instrument is intended to complete the
application of the Århus Convention, introducing a legal instru-
ment aimed at the Community authorities. The cross-border
impact of much environmental legislation calls for this act, as
on many occasions it is the Community authority that must
resolve questions of application. We must stress the role of the
European Environment Agency in this task, as a centralised
base for information and monitoring in the area of environ-
mental legislation compliance throughout the EU.

3.4
Although the EESC welcomes the proposed legislation, it
wishes to point out and clarify a number of aspects that are
essential to fully meeting the stated objective.

The definitions provided in this proposal are based on,
3.4.1
though differ slightly from, those found in the Århus Conven-
tion. They include, in particular:

3.4.1.1
The concept of qualified entity is defined in both
proposals but not found in the Århus Convention, which refers
only to ‘the public concerned’ and recognises as such any orga-
nisations promoting environmental protection. According to
the Convention, it is not necessary for such protection to be
their sole objective, only that they meet
legal
requirements for associations in each Member State. It would
seem obvious that other non-profit organisations, such as trade
unions, social economy and socio-occupational organisations,
consumer associations, etc., also play an important role in
protecting the environment at
local, regional, national and
European level.

the relevant

3.4.1.2
The Regulation refers to Community institutions and
bodies in a broad sense, referring back to Regulation (EC) No.
1049/2001. This is understood to include the EESC.

3. General comments

The EESC has repeatedly expressed its view that the EU's
3.1
most appropriate instrument
for ensuring compliance with
environmental legislation is public participation in sustainable
development policy, and that such participation must be based
on transparency and checks to ensure that all parties comply
with the relevant legislation, whilst guaranteeing the protection

3.4.1.3
It must be pointed out that there are discrepancies in
the wording of the list of areas covered by environmental law.
The EESC recommends checking a number of key points, e.g.
indent (v). It is essential that, as minimum requirements, all
paragraphs relating to the harmonisation of environmental
protection are worded in the same way. (N.B. This does not
apply to the English version of the document.)

C 117/54

EN

Official Journal of the European Union

30.4.2004

3.4.2
Environmental proceedings. Account should be taken
of the fact that Article 9(5) of the Århus Convention clearly
states that the parties – in this case the Community bodies -
must provide information about access to procedures and
establish ‘assistance mechanisms’ to remove or reduce financial
and other barriers to access to justice in environmental matters.

4. Specific comments

4.1 Regulation on access to information, public participation in deci-
sion-making and access to justice in environmental matters

The EESC considers that

4.1.1
the proposed Regulation
strengthens the broad measures provided by the Commission
to meet environmental objectives and, in particular, that it is
the appropriate instrument to facilitate access to information,
participation and access
to justice for European citizens
through their social, economic and environmental organisa-
tions vis-à-vis the Community institutions and bodies, including
the agencies and public offices set up by the EC Treaty or on
the basis thereof, except where these are using their judicial or
legislative powers, so as to ensure that not only the Commis-
sion, but all institutions in the broadest sense of the term are
answerable to citizens, as laid down in Regulation (EC) No.
1049/2001.

A key development is the introduction of the term
4.1.2
to justice (as
in connection with access
‘qualified entity’
opposed to the articles on information and participation, which
stick to the term ‘the public’, as used in the Århus Convention).
The EESC welcomes, in principle, the inclusion of this term as
it believes it will facilitate access to justice, especially as such
entities are not required to have a sufficient interest or maintain
the impairment of a right. The EESC is concerned, however, by
the restrictive nature of the criteria for recognising qualified
entities, according to which environmental protection must be
their sole objective. It would be more appropriate in the Euro-
pean context if organisations which have social and economic
objectives, as well as competence in the area of environmental
protection, were also recognised.

for the concept

While not as restrictive as the definition of qualified entity, it
could have the same effect, albeit owing to procedural inertia.
The EESC also reiterates its request
to be
extended to all organisations whose objectives include environ-
mental protection. Article 8 should also include a requirement
for the Community institutions to publish the results of such
participation. The EESC supports the extension provided for by
the Århus Convention of access to environmental information
and
and of public participation in drawing up plans
programmes on environmental matters by Community institu-
tions and bodies. It hopes that those organisations will operate
in such a way as to ensure effective participation, and that the
results of such participation will be properly taken into consid-
eration. It calls for the financing criteria of the activities listed
in the annex to the Convention, and deliberations relating to
GMOs and chemical substances, to be published transparently
and in full, given the particular sensitivity of the public to
environmental safety and the health protection issues that go
with it.

4.1.4
From the point of view of the Århus Convention, Title
IV on access to justice in environmental matters distorts the
stated objective by stipulating that only qualified entities are
entitled to request an internal review of administrative acts or
initiate legal proceedings. While the EESC understands that the
restrictive nature of the proposal stems from a desire for proce-
dural
legal
proceedings in the Community sphere are concerned, demon-
strating an interest and competence would be sufficient
grounds for taking such action.

that, where reviews or

it believes

simplicity,

4.1.5
qualified entities should have to cover several countries.

The EESC does not believe that the field of activity of

4.1.6
Article 12(d) of the Proposal for a Regulation stipulates
that a qualified entity must have its annual statement of
accounts certified by an auditor. In accordance with the prin-
ciple of subsidiarity, the Member States should be left to check
compliance with national accounting requirements applicable
to such organisations.

4.1.3
As regards public participation in the preparation of
plans and programmes, as laid down in Article 8, the EESC
would like to begin by reiterating that the reference to NGOs
that promote environmental protection is potentially restrictive.

4.1.7
The EESC thinks that in order to reduce the cost of
claims for state legal protection, the costs should be limited in
line with the interests at stake and the financial support, as laid
down in the Århus Convention.

Brussels, 29 April 2004

The President

of the European Economic and Social Committee

Roger BRIESCH