Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies
Date: 2005-08-31
Institutions: European Commission
Subjects: European Community, UNO, access to information, access to the courts, environmental law, environmental policy, environmental protection, international convention, transparency in decision-making

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 31.8.2005 
COM(2005) 410 final 

2003/0242 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation of the European 
Parliament and of the Council on the application of the provisions of the Aarhus 
Convention on Access to Information, Public Participation in Decision-making and 
Access to Justice in Environmental Matters to Community institutions and bodies 

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2003/0242 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation of the European 
Parliament and of the Council on the application of the provisions of the Aarhus 
Convention on Access to Information, Public Participation in Decision-making and 
Access to Justice in Environmental Matters to Community institutions and bodies 

1- 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2003)622 final – 2003/0242(COD)): 

24 October 2003 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

29 April 2004 

Date of the opinion of the European Parliament, first reading: 

31 March 2004 

Date of adoption of the common position: 

18 July 2005 

2- 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The  Commission  proposal  aims  at  applying  the  provisions  of  the  UN/ECE  (Aarhus) 
Convention on Access to Information, Public Participation in Decision-making and Access to 
Justice in Environmental Matters to Community institutions and bodies. The Convention has 
been ratified by the Community on 17 February 2005 and became binding upon it as a Party 
90 days later. The Aarhus Convention, in its Article 2 (2)(d) – definition of “public authority” 
-  explicitly  includes  under  the  scope  of  the  Convention  “the  institutions  of  any  regional 
economic  integration  organization  referred  to  in  Article  17  which  is  a  Party  to  this 
Convention”. Considering that the concept of “public authority” as defined in the Convention 
overall  is  a  broad  one,  this  would  not  only  include  the  Community  institutions  named  in 
Article 7 of the EC Treaty, but, as a rule, all bodies established by, or on the basis of, the EC 
Treaty and performing public functions.  

The  proposal  addresses  the  three  pillars  of  the  Convention,  and  makes  specific  provision 
where those are of relevance to decision-making at Community level.  

In  relation  to  access  to  environmental  information,  it  builds  upon  Regulation  (EC)  N° 
1049/2001 of the European Parliament and the Council regarding public access to European 
Parliament, Council and Commission documents, the application of which is extended to all 
Community  institutions  and  bodies  as  defined  and  additional  rules  are  provided  for  in 
particular concerning the active dissemination of environmental information.  

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The  proposal  provides  for  public  participation  in  the  preparation  of  plans  and  programmes 
relating  to  the  environment  by  Community  institutions  and  bodies.  While  the  Aarhus 
Convention  and  implementing  legislation  also  aims  at  participation  in  the  authorisation  of 
environmentally  significant projects,  this is  not of  relevance here as  such projects  are being 
authorised at the Member States level.  

Finally, the proposal makes provision for a review procedure concerning acts and omissions 
of Community institutions in relation to Community law relating to the environment. 

3- 

COMMENTS ON THE COMMON POSITION 

3.1 

General comments 

In  the  EP  Plenary,  the  Commission  accepted  in  full,  in  part  or  in  principle  8  of  the  40 
amendments proposed by the European Parliament in its first reading. The common position 
incorporates  a  number  of  the  European  Parliament’s  first  reading  amendments,  either 
verbatim or in spirit. 

Amendments  accepted  by  the  Commission  were  those  that  sought  to  clarify  or  detail  the 
proposal  at  several  respects,  for  instance  by  making  procedural  details  more  explicit  in  the 
spirit of the Aarhus Convention.  

The Council in its common position has clarified and enhanced procedural details concerning 
access to environmental information in the sense aimed at by a number of EP amendments. 
The  common  position  takes  up  a  number  of  elements,  though  not  all  their  details,  of  EP 
amendments  in  relation  to  public  participation  in  the  preparation  of  plans  and  programmes 
relating to the environment.  

With regard to access to justice, the common position also simplifies criteria and procedures 
for  entitlement  to  make  a  request  for  internal  review  of  acts  of  Community  institutions  and 
bodies;  in  particular,  in  order  to  be  entitled  to  make  such  request,  a  non-governmental 
organisation  is  no  longer  specifically  required  to  be  active  at  Community  level;  yet  any 
requests  have  to  address  Community  level  issues,  i.e.  be  consistent  with  the  definition  of 
environmental law in Article 2(f).  

The  Commission  considers  that  the  common  position  adopted  by  qualified  majority  on  18 
July 2005 does not alter the approach or aims of the proposal and can support it as it stands. 

3.2 

Detailed comments 

3.2.1 

 Parliamentary amendments accepted by the Commission and incorporated in full, in 
part or in principle in the common position 

Amendment 6 is taken up in the common position in Article 1 (1) (a) in a slightly reworded 
form to clarify that also information ‘received or produced’ by Community institutions needs 
to be held by them to be subject to the access to information provisions. 

Amendment 17 is incorporated in the common position slightly reworded as a new paragraph 
2 to Article 1, introducing the concept of Article 3(2) of the Aarhus Convention, according to 
which administrations should assist the public regarding access to information, participation 
in decision-making and access to justice in environmental matters. 

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Amendment  25,  in  the  part  accepted  by  the  Commission,  is  taken  over  by  the  common 
position  in  Article  10  (1),  which  now  clarifies  that  the  time  limit  for  making  a  request  for 
internal review starts to run “after the administrative act was adopted, notified or published, 
whichever is the latest”. 

3.2.2 

Parliamentary amendments rejected by the Commission but incorporated in full, in 
part or in principle in the common position 

Amendment 18, in its part not accepted by the Commission, is incorporated in principle and in 
part  in  the  common  position,  where  it  adds,  in  a  new  Article  6,  provisions  concerning  the 
“application  of  exceptions  concerning  requests  for  access  to  environmental  information”. 
While  following  the  basic  approach  to  extend  Regulation  N°  1049/2001  on  access  to 
documents to all Community institutions and bodies, the Council found that some provisions 
of  that  Regulation  concerning  exceptions  would  need  to  be  qualified  for  requests  for 
environmental  information,  in  order  to  ensure  full  compliance  with  the  Aarhus  Convention. 
These are taken up by the new Article 6.  

Amendments  21  and  46,  and  22,  relating  to  the  provisions  on  public  participation  were 
rejected by the Commission, as unduly entering into details of administrative procedure. They 
are  however  in  principle  and  in  part  incorporated  in  the  common  position  with  the 
reformulated Article 9 (Article 8 in the Commission proposal).  

Amendments  33,  35  and  58  concerning  criteria  for  recognition  of  qualified  entities  were 
rejected by the Commission. Some elements of those amendments have been taken on board 
by the common position’s Article 11 which deals with “criteria for entitlement at Community 
level”.  In  particular,  there  is  no  longer  the  requirement  that  the  non-governmental 
organisations, in order to be recognised, must be active at Community level as such; yet any 
requests for internal review to be made by them have to address Community level issues, i.e. 
be  consistent  with  the  definition  of  “environmental  law”.  Furthermore,  as  compared  to  the 
Commission  proposal,  the  common  position  no  longer  requires  the  non-governmental 
organisation to “have its annual statement of accounts certified by a registered auditor.” 

3.2.3 

Parliamentary  amendments  rejected  by  the  Commission  and  the  Council  and  not 
incorporated in the common position 

Amendment 1 was already covered by the formulation of Recital 7. 

Amendments  40,  41  were  not  accepted  by  the  Commission  and  are  not  incorporated  in  the 
common  position,  because  they  would  extend  the  scope  of  the  Regulation  and  the 
organisations entitled to have access to a review procedure beyond ”environmental protection 
to  “the  promotion  of  sustainable  development”.  The  Aarhus  Convention  grants  a  privileged 
status  to  non-governmental  organisations  promoting  environmental  protection,  which  is 
reflected in the Commission’s proposal. The Commission also rejected Amendments 8 and 44 
enlarging  the  definition  of  ‘qualified  entities’  to  organisations  having  the  objective  ‘to 
promote sustainable development’. Furthermore, those amendments also aimed to include ‘ad 
hoc’, local organisations which did not correspond to the Commission proposal’s approach of 
covering items of a Community dimension. For the common position, both amendments are 
as such no longer relevant, since the notion of “qualified entities” was deleted from the text 
(as regards the ‘Community dimension’, see however above 3.2.2) 

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Amendment 56 on Recital 15 was not accepted by the Commission as it referred to the rules 
of Directive 2003/4 on exceptions to access to environmental information. This amendment is 
not incorporated in the common position, which however adds a number of elements to the 
Commission’s proposal as concerns access to environmental information (see 3.2.5). 

Amendment 3 on Recital 18 was rejected by the Commission and is not incorporated in the 
common  position  as  related  operational  provisions  on  public  participation  do  not  contain  a 
reference to the “use of tools such as specific websites”.  

Amendment 4 concerning a new Recital 20 a) aiming to exclude organisations “that may not 
have genuine environmental protection objectives” was rejected by the Commission and is not 
taken over in the common position. 

Amendment  5  (new  Recital  20b)  concerning  the  need  for  Community  institutions  ”to 
streamline procedures” is not linked to a specific operational provision and not incorporated. 

Amendment 9, aiming to include in the definition of “environmental information” information 
on  the  state  of  infringement  proceedings,  was  rejected  by  the  Commission.  It  is  not 
incorporated  in  the  common  position,  where  the  definition  is  taken  over  from  Directive 
2003/4/EC on public access to environmental information. 

Amendment  16  was  rejected  by  the  Commission  as  containing  a  number  of  requirements 
relating  to  the  active  dissemination  of  environmental  information  which  go  beyond  the 
requirements  of  the  Aarhus  Convention.  The  common  position  neither  incorporates  this 
amendment which would have entailed unnecessary administrative burdens. 

Amendment 19 was rejected by the Commission as being in substance already provided for 
by the proposal. The common position neither incorporates this amendment. 

Amendments 7 and 10 relating to the scope of the public participation provisions - extension 
to  ‘policies  relating  to  the  environment’  and  inclusion  of  plans  and  programmes  ‘subject  to 
funding by a Community institution or body’ - were rejected by the Commission as they go 
beyond the legally binding requirements of the Aarhus Convention and are not in line with the 
approach followed for the Member States. The common position neither incorporates them.  

Amendment  23  concerning  details  of  dealing  with  the  results  of  public  participation  was 
rejected  by  the  Commission  (as  were  related  21  and  46,  22,  see  3.2.2)  as  entering  into  too 
much administrative detail. The common position, while making a number of changes to the 
public participation provisions, does not incorporate the substance of this amendment either. 

Amendment  45  aiming  to  modify  the  definition  of  ‘environmental  law’,  to  include 
Community legislation which has as its primary or subsidiary objective the protection of the 
environment  was  rejected  by  the  Commission  as  creating  potential  uncertainty  for  the 
interpretation.  It  is  not  incorporated  in  the  common  position  either;  which  however 
substantially changed the definition in the Commission proposal.  

Amendments 30, 42, 47, 48, 49, 50, 52 and 53 relating to requests for review by individual 
members of the public were rejected by the Commission and are neither incorporated in the 
common position. The Aarhus Convention provides for the possibility for Parties to establish 
criteria  as  concerns  access  to  justice,  which  the  Commission  proposal  has  made  use  of 
concerning  the  criteria  for  non-governmental  organisations  (“qualified  entities”).  While  the 

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criteria  for  entitlement  to  make  a  request  for  internal  review  have  been  simplified  in  the 
common position, the latter, alike the Commission proposal, carefully sticks to the provisions 
of Articles 230(4) and 232(3) of the EC Treaty. 

Amendment  51  aiming  to  add  a  new  Article  10b  concerning  the  complaints  with  the 
Ombudsman was rejected by the Commission, in order not to interfere with Article 195 EC 
Treaty which provides for access to the Ombudsman procedure. The common position does 
not incorporate this amendment. 

Amendment  37  was  rejected  by  the  Commission  and  is  not  incorporated  in  the  common 
position,  as  not  all  Community  institutions  and  bodies  will  have  to  adapt  their  rules  of 
procedure, and, should they need to do so, some time needs to be given for doing so. 

3.2.4 

Parliamentary  amendments  accepted  in  full,  in  part  or  in  principle  by  the 
Commission but not incorporated in the common position 

Amendment 39 relating to Recital 1 was accepted in principle by the Commission as being of 
a declaratory nature; it is however not taken over by the common position. 

The part of amendment 43 accepted by the Commission, to add “in accordance with national 
law” in the definition of “the public” is not taken over in the common position. 

The part of amendment 18 accepted by the Commission, qualifying “as promptly as possible” 
for  informing  the  applicant  when  information  is  not  held  by  Community  institutions  and 
bodies as “or, at the latest, within 15 working days” has not been taken over by the common 
position (now Article 7).  

Amendment 36 concerning the possibility of a ‘qualified entity’ (NGOs) to appeal against a 
decision  by  the  Commission  to  cancel  its  recognition  has  lost  its  relevance  since  the 
corresponding Article on such recognition procedure is not taken up in the common position.  

Amendment  38  concerning  an  application  of  the  Regulation  six  months  after  its  entry  into 
force is not taken over in the common position, where this date is however “pm”. 

4- 

CONCLUSION 

The  changes  introduced  by  the  Council  help  to  clarify  the  proposal  in  the  light  of  the 
provisions  of  the  Aarhus  Convention,  in  particular  in  relation  to  access  to  environmental 
information. They are also more specific in relation to public participation, while leaving the 
necessary  flexibility  to  the  institutions  and  bodies  concerned  to  provide  for  the  procedural 
arrangements  and  details  through  practical  and/or  other  provisions.  While  the  criteria  and 
procedure  for  entitlement  of  non-governmental  organisations  to  make  a  request  for  internal 
review have been simplified, the Commission is satisfied that they maintain crucial elements 
for  qualifying  that  such  organisation’s  primary  objective  must  be  the  promotion  of 
environmental protection in the context of Community environment policy. The Commission 
therefore supports the common position adopted by qualified majority on 18 July 2005. 

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