Common Position (EC) No 31/2005 of 18 July 2005 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 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 Community institutions and bodies
Date: 2005-07-18
Institutions: Council of the European Union
Subjects: Ecosoc, access to EU information, drafting of EU law, environmental law, environmental policy, provision of documents

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COMMON POSITION (EC) No 31/2005

adopted by the Council on 18 July 2005

with a view to adopting Regulation (EC) No …/2005 of the European Parliament and of the
Council of … on the application of the provisions of the Århus Convention on Access to Informa-
tion, Public Participation in Decision-making and Access to Justice in Environmental Matters to
Community institutions and bodies

(2005/C 264 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

February 2005. Provisions of Community law should be
consistent with that Convention.

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

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty (2),

Whereas:

(1)

(2)

(3)

Community legislation in the field of the environment
inter alia, to preserving, protecting
aims to contribute,
and improving the quality of
the environment and
protecting human health.

Environment

information and

Community
stresses
environmental

Action
The
Sixth
Programme (3)
the importance of providing
adequate
effective
opportunities for public participation in environmental
decision-making, thereby increasing accountability and
transparency of decision-making and contributing to
public awareness and support for the decisions taken. It
furthermore encourages, as did its predecessors (4), more
effective implementation and application of Community
legislation on environmental protection,
including the
enforcement of Community rules and the taking of
action against breaches of Community environmental
legislation.

On 25 June 1998 the Community signed the United
Nations Economic Commission for Europe (UNECE)
Convention on Access to Information, Public Participa-
tion in Decision-making and Access to Justice in Envir-
onmental Matters (hereinafter the Århus Convention).
The Community approved the Århus Convention on 17

(1) OJ C 117, 30.4.2004, p. 52.
(2) Opinion of the European Parliament of 31 March 2004 (OJ C 123
E, 29.4.2004, p. 612), Council Common Position of 18 July 2005
and Position of the European Parliament of … (not yet published in
the Official Journal).

(3) Decision No 1600/2002/EC of the European Parliament and of the
Council of 22 July 2002 laying down the Sixth Community Envir-
onment Action Programme (OJ L 242, 10.9.2002, p. 1).

(4) Fourth Community Action Programme for the Environment (OJ
C 328, 7.12.1987, p. 1), Fifth Community Action Programme for
the Environment (OJ C 138, 17.5.1993, p. 1).

(4)

(5)

(6)

(7)

The Community has already adopted a body of legisla-
tion, which is evolving and contributes to the achieve-
ment of the objectives of the Århus Convention. Provi-
sion should be made to apply the requirements of the
Convention to Community institutions and bodies.

It is appropriate to deal with the three pillars of the
Århus Convention, namely access to information, public
participation in decision-making and access to justice in
environmental matters, in one piece of legislation and to
lay down common provisions regarding objectives and
definitions. This contributes to rationalising legislation
and increasing the transparency of the implementation
measures taken with regard to Community institutions
and bodies.

As a general principle, the rights guaranteed by the three
pillars of the Århus Convention are without discrimina-
tion as to citizenship, nationality or domicile.

The Århus Convention defines public authorities in a
broad way, the basic concept being that wherever public
authority is exercised, there should be rights for indivi-
duals and their organisations. It is therefore necessary
that the Community institutions and bodies covered by
this Regulation be defined in the same broad and func-
tional way. Under the Århus Convention, Community
institutions and bodies can be excluded from the scope
of application of the Convention when acting in a judi-
cial or legislative capacity. However,
for reasons of
consistency with 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 documents (5), the provisions
on access to environmental information should apply to
Community institutions and bodies acting in a legislative
capacity.

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

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(8)

(9)

the European Parliament and of

The definition of environmental
information in this
Regulation encompasses information in any form on the
state of
the environment. This definition, which has
been aligned to the definition adopted for Directive
2003/4/EC of
the
Council of 28 January 2003 on public access to environ-
mental information (1), has the same content as the one
laid down in the Århus Convention. The definition of
in Regulation (EC) No 1049/2001 encom-
‘document’
passes environmental
information as defined in this
Regulation.

‘Plans

under

existing

EC law.

It is appropriate for this Regulation to provide for a defi-
nition of 'plans and programmes' taking into account
the provisions of the Århus Convention, in parallel with
the approach followed in relation to the Member States'
obligations
and
programmes relating to the environment’ should be
defined in relation to their contribution to the achieve-
ment, or to their likely significant effect on the achieve-
ment, of the objectives of Community environmental
policy. For the 10-year period starting from 22 July
2002,
the Sixth Community Environment Action
Programme establishes the objectives of Community
environmental policy and the actions planned to attain
these objectives. At the end of this period, a subsequent
environmental action programme should be adopted.

(10)

In view of the fact that environmental law is constantly
evolving,
law should
refer to the objectives of Community policy on the
environment as set out in the Treaty.

the definition of environmental

(11) Administrative acts of individual scope should be open
review where they have legally
to possible internal
binding and external effects. Similarly, omissions should
be covered where there is an obligation to adopt an
administrative act under environmental law. Given that
acts adopted by a Community institution or body acting
in a judicial or legislative capacity can be excluded, the
same should apply to other inquiry procedures where
the Community institution or body acts as an adminis-
trative review body under provisions of the Treaty.

(12)

The Århus Convention calls for public access to environ-
information either following a request or by
mental
active dissemination by the authorities covered by the
Convention. Regulation (EC) No 1049/2001 applies to
the European Parliament, the Council and the Commis-
sion, as well as to agencies and similar bodies set up by
a Community legal act. It provides rules for these institu-

(1) OJ L 41, 14.2.2003, p. 26.

tions that comply to a great extent with the rules laid
down in the Århus Convention. It is necessary to extend
the application of Regulation (EC) No 1049/2001 to all
other Community institutions and bodies.

(13) Where the Århus Convention contains provisions that
are not, in whole or in part, to be found also in Regu-
lation (EC) No 1049/2001,
it is necessary to address
those,
in particular with regard to the collection and
dissemination of environmental information.

(14)

For the right of public access to environmental informa-
tion to be effective, environmental information of good
quality is essential. It is therefore appropriate to intro-
duce rules
that oblige Community institutions and
bodies to ensure such quality.

these should apply, mutatis mutandis,

(15) Where Regulation (EC) No 1049/2001 provides for
exceptions,
to
requests for access to environmental information under
this Regulation. The grounds for refusal as regards access
to environmental information should be interpreted in a
restrictive way, taking into account the public interest
served by disclosure and whether
the information
requested relates to emissions in the environment. The
term 'commercial interests' covers confidentiality agree-
ments concluded by institutions or bodies acting in a
banking capacity.

(16)

Pursuant toDecision No 2119/98/EC of the European
Parliament and the Council of 24 September 1998
setting up a network for the epidemiological surveillance
and control of communicable diseases in the Com-
munity (2), a network at Community level has already
been set up to promote cooperation and coordination
between the Member States, with the assistance of the
Commission, with a view to improving the prevention
and control in the Community of a number of commu-
the
nicable diseases. Decision No 1786/2002/EC of
European Parliament
the Council of 23
and of
September 2002 (3) adopts a programme of Community
action in the field of public health that complements
national policies. Improving information and knowledge
for the development of public health and enhancing the
capability to respond rapidly and in a coordinated
fashion to threats to health, both of which are elements
of this programme, are objectives that are equally fully
in line with the requirements of the Århus Convention.
This Regulation should therefore apply without prejudice
to Decision No 2119/98/EC and Decision No
1786/2002/EC.

(2) OJ L 268, 3.10.1998, p. 1. Decision as last amended by Regulation

(EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

(3) OJ L 271, 9.10.2002, p. 1. Decision as amended by Decision No

786/2004/EC (OJ L 138, 30.4.2004, p. 7).

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(17)

The Århus Convention requires Parties to make provi-
sions for the public to participate during the preparation
of plans and programmes relating to the environment.
Such provisions are to include reasonable time-frames
for informing the public of the environmental decision-
making in question. To be effective, public participation
is to take place at an early stage, when all options are
open. When laying down provisions on public participa-
tion, Community institutions and bodies, should identify
the public which may participate.

(18) Article 9(3) of the Århus Convention provides for access
to judicial or other review procedures for challenging
acts and omissions by private persons and public autho-
rities which contravene provisions of law relating to the
environment. Provisions on access to justice should be
consistent with the Treaty.
is appropriate in this
context that this Regulation address only acts and omis-
sions by public authorities.

It

(19)

To ensure adequate and effective remedies,
including
those available before the Court of Justice of the Euro-
pean Communities under the relevant provisions of the
Treaty, it is appropriate that the Community institution
or body which issued the act to be challenged or which,
in the case of an alleged administrative omission,
omitted to act, be given the opportunity to reconsider its
former decision, or, in the case of an omission, to act.

(20) Non-governmental organisations active in the field of
environmental protection which meet certain criteria, in
particular in order to ensure that they are independent
organisations whose primary objective is to promote
environmental protection, should be entitled to request
internal review at Community level of acts adopted or of
omissions under environmental
law by a Community
institution or body, with a view to their reconsideration
by the institution or body in question.

(21) Where previous requests for internal review have been
organisation
unsuccessful,
concerned should be able to institute proceedings before
the Court of
Justice in accordance with the relevant
provisions of the Treaty.

non-governmental

the

HAVE ADOPTED THIS REGULATION:

TITLE I

GENERAL PROVISIONS

Article 1

Objective

1.
The objective of this Regulation is to contribute to the
implementation of the obligations arising under the UNECE
Convention on Access to Information, Public Participation in
Decision-making and Access
to Justice in Environmental
matters, hereinafter referred to as ‘the Århus Convention’, by
laying down rules to apply the provisions of the Convention to
Community institutions and bodies, in particular by:

(a) guaranteeing the right of public access to environmental
information received or produced by Community institu-
tions or bodies and held by them, and by setting out the
basic terms and conditions of, and practical arrangements
for, the exercise of that right;

(b) ensuring that environmental

information is progressively
made available and disseminated to the public in order to
achieve its widest possible systematic availability and disse-
mination. To that end, the use, in particular, of computer
telecommunication and/or electronic technology, where
available, shall be promoted;

(c) providing for public participation concerning plans and

programmes relating to the environment;

(d) granting access to justice in environmental matters at Com-
munity level under the conditions laid down by this Regu-
lation.

2.
In applying the provisions of this Regulation, the Com-
munity institutions and bodies shall endeavour to assist and
provide guidance to the public with regard to access to infor-
mation, participation in decision-making and access to justice
in environmental matters.

Article 2

Definitions

(22)

This Regulation respects the fundamental rights and
observes the principles recognised by Article 6 of the
Treaty on the European Union and reflected in the
Charter of Fundamental Rights of the European Union,
in particular Article 37 thereof,

1.

For the purpose of this Regulation:

(a) ‘applicant’ means any natural or legal person requesting

environmental information;

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(b) ‘the public’ means one or more natural or legal persons,
and associations, organisations or groups of such persons;

(ii) which are required under legislative, regulatory or

administrative provisions; and

(c) ‘Community institution or body’ means any public institu-
tion, body, office or agency established by, or on the basis
of, the Treaty except when acting in a judicial or legislative
capacity. However, the provisions under Title II shall apply
to Community institutions or bodies acting in a legislative
capacity;

(iii) which contribute to, or are likely to have significant
effects on, the achievement of the objectives of Com-
munity environmental policy, such as laid down in the
Sixth Community Environment Action Programme, or
in any subsequent general
action
programme.

environmental

(d) ‘environmental

information’ means any information in
written, visual, aural, electronic or any other material form
on:

General environmental action programmes shall also be
considered as plans and programmes relating to the envir-
onment.

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

biological

diversity

land,

and

its

including

(ii) factors, such as substances, energy, noise, radiation or
waste,
emissions,
discharges and other releases into the environment,
affecting or likely to affect the elements of the environ-
ment referred to in point (i);

radioactive waste,

(iii) 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 (i) and
(ii) as well as measures or activities designed to protect
those elements;

(iv) reports on the implementation of environmental legis-

lation;

(v) cost-benefit and other economic analyses and assump-
tions used within the framework of the measures and
activities referred to in point (iii); and

(vi) the state of human health and safety,

including the
contamination of
the food chain, where relevant,
conditions of human life, cultural sites and built struc-
tures in as much as they are or may be affected by the
state of the elements of the environment referred to in
point (i) or, through those elements, by any of the
matters referred to in points (ii) and (iii);

(e) ‘plans and programmes relating to the environment’ means

plans and programmes,

This definition shall not
include financial, banking or
budget plans and programmes, namely those laying down
how particular projects or activities should be financed or
those related to the proposed annual budgets, internal work
programmes of a Community institution or body, or emer-
gency plans and programmes designed for the sole purpose
of civil protection;

(f) ‘environmental

law’ means Community legislation which,
irrespective of its legal basis, contributes to the pursuit of
the objectives of Community policy on the environment as
set out in the Treaty: preserving, protecting and improving
the quality of the environment, protecting human health,
the prudent and rational utilisation of natural resources,
and promoting measures at international level to deal with
regional or worldwide environmental problems;

(g) ‘administrative act’ means any measure of individual scope
under environmental law, taken by a Community institu-
tion or body, and having legally binding and external
effects;

(h) ‘administrative omission’ means any failure of a Com-
munity institution or body to adopt an administrative act
as defined in (g).

2.
Administrative acts and administrative omissions shall
not include measures taken or omissions by a Community
institution or body in its capacity as an administrative review
body, such as under:

(a) Articles 81, 82, 86 and 87 of the Treaty (competition

rules);

(b) Articles 226 and 228 of the Treaty (infringement proceed-

ings);

(c) Article 195 of the Treaty (Ombudsman proceedings);

(i) which are subject to preparation and, as appropriate,

adoption by a Community institution or body;

(d) Article 280 of the Treaty (OLAF proceedings).

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TITLE II

ACCESS TO ENVIRONMENTAL INFORMATION

(b) progress

reports on the implementation of
the items
referred to under (a) where prepared or held in electronic
form by Community institutions or bodies;

(c) reports on the state of the environment as referred to in

Article 3

paragraph 4;

Application of Regulation (EC) No 1049/2001

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

Regulation (EC) No 1049/2001 shall apply to any request by
an applicant for access to environmental information held by
Community institutions and bodies without discrimination as
to citizenship, nationality or domicile and, in the case of a legal
person, without discrimination as to where it has its registered
seat or an effective centre of its activities.

(e) authorisations with a significant impact on the environ-
ment, and environmental agreements, or a reference to the
place where such information can be requested or accessed;

(f) environmental

assessments
studies
concerning environmental elements, or a reference to the
place where such information can be requested or accessed.

impact

and

risk

For the purposes of this Regulation, the word ‘institution’ in
Regulation (EC) No 1049/2001 shall be read as ‘Community
institution or body’.

3.
In appropriate cases, Community institutions and bodies
may satisfy the requirements of paragraphs 1 and 2 by creating
links to Internet sites where the information can be found.

Article 4

Collection and dissemination of environmental informa-
tion

1.
Community institutions and bodies shall organise the
environmental information which is relevant to their functions
and which is held by them, with a view to its active and
systematic dissemination to the public, in particular by means
of computer telecommunication and/or electronic technology
in accordance with Articles 11(1) and (2), and 12 of Regulation
(EC) No 1049/2001. They shall make this environmental infor-
mation progressively available in electronic databases that are
easily accessible to the public through public telecommunica-
tion networks. To that end, they shall place the environmental
information that they hold on databases and equip these with
search aids and other forms of software designed to assist the
public in locating the information they require.

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

Community institutions and bodies shall make all reasonable
efforts to maintain environmental information held by them in
forms or formats that are readily reproducible and accessible by
computer telecommunications or by other electronic means.

2.
The environmental information to be made available and
disseminated shall be updated as appropriate. In addition to the
documents listed in Article 12(2) and (3) and in Article 13(1)
and (2) of Regulation (EC) No 1049/2001, the databases or
registers shall include the following:

(a) texts of international treaties, conventions or agreements,
and of Community legislation on the environment or
relating to it, and of policies, plans and programmes
relating to the environment;

4.
The Commission shall ensure that, at regular intervals not
exceeding four years, a report on the state of the environment,
including information on the quality of, and pressures on, the
environment is published and disseminated.

Article 5

Quality of the environmental information

Community institutions and bodies shall,

1.
within their power, ensure that any information that
compiled by them is up to date, accurate and comparable.

insofar as is
is

2.
Community institutions and bodies shall, upon request,
inform the applicant of the place where information on the
measurement procedures,
analysis,
sampling and pre-treatment of samples, used in compiling the
information can be found, if it is available. Alternatively, they
may refer them to the standardised procedure that was used.

including methods of

Article 6

Application of exceptions concerning requests for access
to environmental information

As regards Article 4(2), first indent, of Regulation (EC) No
1.
1049/2001, an overriding public interest in disclosure shall be
deemed to exist where the information requested relates to
emissions into the environment. As regards the other excep-
tions set out in Article 4(2) and (3) of Regulation (EC) No
1049/2001, the fact that the information requested relates to
emissions into the environment shall be taken into particular
account when assessing whether or not there is an overriding
public interest in disclosure.

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2.
In addition to the exceptions set out in Article 4 of Regu-
lation (EC) No 1049/2001, Community institutions and bodies
may refuse access to environmental information where disclo-
sure of the information would adversely affect the protection of
the environment to which the information relates, such as the
breeding sites of rare species.

3. When a Community institution or body holds environ-
mental information originating from a Member State it shall
consult with that Member State and shall apply any relevant
exceptions under Community law. The institution or body
concerned shall release the information if no exception applies.

Article 7

Requests for access to environmental information which
is not held by a Community institution or body

Where a Community institution or body receives a request for
access to environmental information and where this informa-
tion is not held by that Community institution or body, it shall,
as promptly as possible,
inform the applicant of the Com-
munity institution or body or the public authority within the
meaning of Directive 2003/4/EC to which it believes it
is
possible to apply for the information requested or transfer the
request to the relevant Community institution or body or the
public authority and inform the applicant accordingly.

Article 8

Cooperation

In the event of an imminent threat to human health or the
environment, whether caused by human activities or due to
natural causes, Community institutions and bodies shall, upon
request of public authorities within the meaning of Directive
2003/4/EC, collaborate with and assist those public authorities
in order to enable the latter to disseminate immediately and
without delay to the public that might be affected all environ-
mental information which could enable it to take measures to
prevent or mitigate harm arising from the threat, to the extent
that this information is held by or on behalf of Community
institutions and bodies and/or those public authorities.

The first subparagraph shall apply without prejudice to any
specific obligation laid down by Community legislation, in par-
ticular by Decision No 2119/98/EC and by Decision No
1786/2002/EC.

TITLE III

PUBLIC

PARTICIPATION

CONCERNING

PLANS

AND

PROGRAMMES RELATING TO THE ENVIRONMENT

Article 9

Community institutions and bodies shall provide, through
1.
appropriate practical and/or other provisions, early and effec-
tive opportunities for the public to participate during the
preparation, modification or review of plans or programmes

relating to the environment when all options are still open. In
particular, where the Commission prepares a proposal for such
a plan or programme which is submitted to other Community
institutions or bodies for decision, it shall provide for public
participation at that preparatory stage.

Community institutions and bodies shall

2.
identify the
public affected or likely to be affected by, or having an interest
in, a plan or programme of the type referred to in paragraph 1,
taking into account the objectives of this Regulation.

Community institutions and bodies shall ensure that the
3.
public referred to in paragraph 2 is informed, whether by
public notices or other appropriate means, such as electronic
media where available, of:

(a) the draft proposal, where available;

(b) the environmental

information or assessment relevant to
the plan or programme under preparation, where available;
and

(c) practical arrangements for participation, including:

(i) the administrative entity from which the relevant infor-

mation may be obtained,

(ii) the administrative entity to which comments, opinions

or questions may be submitted, and

(iii) reasonable time-frames allowing sufficient time for the
public to be informed and to prepare and participate
effectively
environmental decision-making
process.

in the

least

A time limit of at

four weeks shall be set

for
4.
receiving comments. Where meetings or hearings are orga-
nised, prior notice of at least four weeks shall be given. Time
limits may be shortened in urgent cases or where the public
has already had the opportunity to comment on the plan or
programme in question.

TITLE IV

INTERNAL REVIEW AND ACCESS TO JUSTICE

Article 10

Request for internal review of administrative acts

Any non-governmental organisation which meets the
1.
criteria set out in Article 11 is entitled to make a request for
internal review to the Community institution or body that has
adopted an administrative act under environmental law or, in
case of an alleged administrative omission,
should have
adopted such an act.

Such a request must be made in writing and within a time limit
not exceeding four weeks after the administrative act was
adopted, notified or published, whichever is the latest, or, in
the case of an alleged omission, four weeks after the date when
the administrative act was required. The request shall state the
grounds for the review.

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2.
The Community institution or body referred to in para-
graph 1 shall consider any such request, unless it is clearly
unsubstantiated. The Community institution or body shall state
its reasons in a written reply as soon as possible, but no later
than twelve weeks after receipt of the request.

3. Where the Community institution or body is unable,
despite exercising due diligence, to act in accordance with para-
inform the non-governmental organisation
graph 2,
which made the request as soon as possible and at the latest
within the period mentioned in that paragraph, of the reasons
for its failure to act and when it intends to do so.

it shall

In any event, the Community institution or body shall act
within eighteen weeks from receipt of the request.

Article 11

Criteria for entitlement at Community level

1.
A non-governmental organisation shall be entitled to
make a request for internal review in accordance with Article
10, provided that:

(a) it

is an independent non-profit-making legal person in
accordance with a Member State's national law or practice;

(b) it has the primary stated objective of promoting environ-
mental protection in the context of environmental law;

(c) it has existed for more than two years and is actively

pursuing the objective referred to under (b);

(d) the subject matter in respect of which the request

for
internal review is made is covered by its objective and
activities.

2.
The Commission shall adopt the provisions which are
necessary to ensure transparent and consistent application of
the criteria mentioned in paragraph 1.

Article 12

Proceedings before the Court of Justice

The non-governmental organisation which made the
1.
request for internal review pursuant to Article 10 may institute
proceedings before the Court of Justice in accordance with the
relevant provisions of the Treaty.

2. Where the Community institution or body fails to act in
accordance with Article 10(2) or (3) the non-governmental
organisation may institute proceedings before the Court of
Justice in accordance with the relevant provisions of the Treaty.

TITLE V

FINAL PROVISIONS

Article 13

Application measures

Where necessary, Community institutions and bodies shall
adapt their rules of procedure to the provisions of this Regu-
lation. These adaptations shall take effect from … (*).

Article 14

Entry into force

into force on the third day
This Regulation shall enter
following its publication in the Official Journal of the European
Union.

It shall apply from … (**).

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament

The President

…

For the Council

The President

…

(*) …
(**) …

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

The Commission adopted its 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 Partici-
pation in Decision-making and Access to Justice in Environmental Matters to EC institutions and
bodies on 28 October 2003.

The European Parliament adopted its first-reading opinion at its session from 29 March to 1 April
2004.

The Economic and Social Committee adopted its opinion on 29 April 2004 (1).

The Council adopted its common position on 18 July 2005.

II. OBJECTIVE

The proposed Regulation aims to apply the principles of the Århus Convention to Community institu-
tions and bodies, by introducing a framework of requirements for access to information, public partici-
pation in decision-making and access to justice in environmental matters at Community level. It there-
fore contributes to the pursuit of the objectives of Community environmental policy outlined in
Article 174(1) EC Treaty. Finally, the adoption of the present proposal for a Regulation would demon-
strate at global level that the European Community is determined to assume its responsibilities in envir-
onmental matters.

III. ANALYSIS OF THE COMMON POSITION

1. General

The common position incorporates a number of the European Parliament's first-reading amend-
ments, either verbatim, in part or in spirit. In particular, procedural requirements which Community
institutions and bodies have to meet with regard to information of the public and public participa-
tion in decision-making have been clarified and enhanced. With regard to access to justice, criteria
for entitlement to make a request for internal review have been simplified. Qualified entities (now
defined as NGOs meeting the relevant criteria) are no longer required to be active at Community
level as such, yet any requests have to address Community level issues, i.e. be consistent with the
definition of environmental law as it appears in Article 2 (f).

However, other amendments are not reflected in the common position because the Council agreed
that they were unnecessary and/or undesirable or because provisions from the original Commission
proposal were deleted or thoroughly redrafted.

The common position also includes changes other than those envisaged in the European Parlia-
ment's first-reading opinion. In addition, a number of drafting changes have been introduced to
clarify the text or to ensure the overall coherence of the Directive.

2. Specific

In particular, the Council agreed that:

— amendments 39, 40 and 41 were not acceptable because sustainable development is outside the
scope of the Convention and not in line with Article 174 of the EC Treaty with regard to the
objectives of environmental policy,

(1) OJ C 117, 30.4.2004, p. 52.

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— amendment 1 was covered by the formulation of recital 7,

— amendment 56 could have created an overlapping exemption regime: Regulation (EC) No

1049/2001 provides a sufficient framework to ensure compliance with the Convention;

— amendments 3 and 7 and 10 went beyond the requirements of the Århus Convention and were

therefore unnecessary for ensuring compliance,

— amendment 5 was not linked to any specific provisions in the Regulation; the concern that
procedures should be streamlined is met in particular by Articles 10 to 12 in the common posi-
tion,

— amendments 8 and 44 were no longer relevant since the notion of 'qualified entity' was deleted

from the text,

— amendment 9 was not acceptable because the definition of 'environmental information' which
appears in the common position was taken over from Directive 2003/4/EC on access to infor-
mation in the field of the environment,

— amendment 16 went beyond the provisions on information dissemination which are contained

in Directive 2003/4/EC and would have entailed unnecessary administrative burdens,

— amendments 17 and 19 repeated provisions already clear in Regulation (EC) No 1049/2001,

— amendments 21, 22 and 23 seemed too prescriptive: it should be left to institutions and bodies
to determine how they want to take account of public participation results, on the basis of
general principles laid out in the regulation,

— amendment 25 could not be accepted because it might have slowed down procedures consider-

ably,

— amendments 30, 42, 47, 48, 49, 50, 52 and 53 were unacceptable as the Århus Convention
leaves it to Parties to determine the modalities for granting access to justice. Besides the fact that
it limits the concept of 'qualified entity' to NGOs meeting a number of conditions, the Common
position carefully sticks to the provisions contained in Articles 230(4) and 232(3) of the EC
Treaty, which are sufficient to ensure compliance,

— amendment 51 was unnecessary because the modalities of access to the Ombudsman, as set out
in Article 195 of the EC Treaty, are sufficient to ensure compliance with the Convention and
should therefore not be interfered with,

— some elements of amendments 33, 35 and 58 were taken on board. Inserting a reference to
sustainable development, however, was deemed inappropriate in the present context, with
regard to the definition of environmental law, as explained above in relation to amendments 39,
40 and 41. Furthermore, the common position ensures that criteria for entitlement to make a
request (now Article 11) avoid legal ambiguities,

— amendment 36 had lost its relevance since the corresponding article was deleted (Article 13 in

the initial proposal), and given the redrafting of former Article 12 (now Article 11),

— amendments 37 and 38 should be rejected because not all Community institutions and bodies
will automatically have to adapt their rules of procedure. Should they need to do so, sufficient
time would need to be given for that purpose, when necessary, and, subsequently, to apply the
new regulation.

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IV. CONCLUSION

The Council believes that the common position represents a balanced package of measures that would
contribute to the pursuit of the objectives of Community environmental policy outlined in Article
174(1) EC Treaty while ensuring compliance with the requirements of the Århus Convention and
compatibility with relevant legislation already in place, in particular Regulation (EC) No 1049/2001,
without creating unjustified costs.

It looks forward to constructive discussions with the European Parliament with a view to the early
adoption of the Regulation.