Commission Opinion pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for 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 EC institutions and bodies amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2006-02-17
Institutions: European Commission
Subjects: access to EU information, access to the courts, decision-making, environmental protection, international convention, transparency in decision-making

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 17.02.2006 
COM(2006) 81 final 

2003/0242 (COD) 

COMMISSION OPINION 

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, 
on the European Parliament's amendments 
to the Council's common position regarding the  
proposal for 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 EC institutions and bodies 

AMENDING THE PROPOSAL OF THE COMMISSION 
pursuant to Article 250 (2) of the EC Treaty 

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2003/0242 (COD) 

COMMISSION OPINION 

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, 
on the European Parliament's amendments 
to the Council's common position regarding the  
proposal for 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 EC institutions and bodies 

1. 

INTRODUCTION 

Article 251(2), third subparagraph, point (c) of the EC Treaty provides that the Commission is 
to  deliver  an  opinion  on  the  amendments  proposed  by  the  European  Parliament  at  second 
reading.  The  Commission  sets  out  its  opinion  below  on  the  25  amendments  proposed  by 
Parliament.  

2. 

BACKGROUND 

–  On  24  October  2003,  the  Commission  submitted  a  proposal  for  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 EC institutions and bodies (COM(2003) 622 final) 
for adoption by co-decision procedure as laid down in Article 251 of the EC Treaty. 

–  The  European  Economic  and  Social  Committee  EESC  gave  a  favourable  Opinion  on  the 

Proposal on 29 April 2004. 

–  The European Parliament adopted its position at first reading on 31 March 2004.  

–  The Council adopted its Common Position on 18 July 2005. 

–  The Commission adopted its Communication on the Common Position on 31 August 2005. 

–  The European Parliament adopted its position at second reading on 18 January 2006. 

3. 

PURPOSE OF THE PROPOSAL 

The  proposal  aims  to  apply  the  provisions  of  the  Aarhus  Convention  on  Access  to 
Information, Public Participation in Decision-making and Access to Justice in Environmental 

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Matters)  -  to  which  the  Community  is  a  Party  since  20051  -  to  Community  institutions  and 
bodies. It covers, as a rule, any public institution, body, office or agency established by, or on 
the  basis  of,  the  Treaty.  Where  relevant,  the  proposed  Regulation  builds  upon  existing 
provisions.  

•  As regards access to environmental information (Title II), the main element of the proposal 
is  to  apply  Regulation  N°  1049/2001  to  all  Community  institutions  and  bodies, 
Furthermore,  provisions  are  made  relating  to  the  organisation  and  dissemination  of 
environmental information.  

•  The  proposed  Regulation  requires  that  Community  institutions  and  bodies  provide  for 
public  participation  in  the  preparation  of  ‘plans  and  programmes  relating  to  the 
environment’,  by  informing  the  public  at  an  early  stage  and  providing  opportunities  to 
comment (Title III). This concerns plans and programmes which contribute to, or are likely 
to  have  significant  effects  on,  the  achievements  of  the  objectives  of  Community 
environmental policy. 

•  Lastly,  the  proposal  provides  NGOs  that  meet  a  number  of  criteria  with  a  possibility  to 
request an ‘internal review’ by the institution concerned, of any “administrative act” in the 
light of alleged infringements of environmental law (Title IV). Access to judicial review by 
the Court of Justice is possible in accordance with Articles 230 and 232 of the EC Treaty.  

Directive  2003/4  on  public  access  to  environmental  information  and  Directive  2003/35  on 
public participation in environmental decision-making already apply the respective provisions 
of the Aarhus Convention at the Member States’ level. A related proposal for a directive on 
access to justice in environmental matters is still pending in the Council.  

4. 

OPINION  OF  THE  COMMISSION  ON  THE  AMENDMENTS  BY  THE  EUROPEAN 
PARLIAMENT 

4.1. 

Amendments accepted or accepted in part or in principle by the Commission 

The  Commission  accepts  amendment  16.  This  amendment  stipulates  a  delay  of  15  working 
days  at  most  for  replying  to  the  applicant  when  information  is  not  held  by  a  Community 
institution or body. 

The  Commission  accepts  in  principle  amendment  1,  taking  up  “promoting  sustainable 
development” among the finalities of Community legislation in the field of the environment. 
However, given that the present wording is drafted closely along the wording of Article 174 
of the Treaty, the Commission proposes to formulate it as follows: “Community legislation in 
the  field  of  the  environment  aims  to  contribute  inter  alia  to  preserving,  protecting  and 
improving  the  quality  of  the  environment  and  protecting  human  health, thus contributing to 
the achievement of sustainable development objectives.” 

The Commission accepts in part amendment 19, as concerns the last paragraph. The wording 
of the common position concerning requirements for public participation in the preparation of 
plans and programmes relating to the environment is drafted closely in line with the wording 

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Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the 
Convention  on  access  to  information,  public  participation  and  access  to  justice  in  environmental 
matters, JO L 124, 17.5.2005, p.1 

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of related provisions of the Aarhus Convention, and the Commission cannot accept the first 
part  of  the  amendment  which  modifies  this  drafting.  The  extension  of  the  time-limit  for 
receiving comments in written consultations from four to eight weeks is acceptable, as being 
in  line  with  the  present  Commission  consultation  practice.  For  the  organisation  of  meetings 
however, a prior notice of eight weeks, instead of four, does not appear necessary, and might 
even  be  counterproductive  in  cases  where  the  organisation  of  an  additional  consultation 
meeting is beneficial. Hence, this part can hence not be accepted. 

Amendment 20 in relation to the “results of public participation” can be accepted in part and 
in principle. The inclusion of “policy” is not acceptable. The remainder of the amendment can 
be accepted in principle, to be added as a 5th paragraph to Article 9 of the Common Position. 
The requirement to take due account of the outcome of public participation was reflected in 
the Commission’s original proposal and comes from the Aarhus Convention (Article 7 with 
Article  6(8)).  The  requirement  to  inform  about  the  plans  and  programmes  adopted  and  the 
underlying considerations is inspired by Article 6(9) of the Convention. Furthermore, to give 
feed-back  on  the  consultation  corresponds  to  Commission  consultation  standards  and  can 
hence be accepted in principle. The wording should, however be adapted to reflect the Aarhus 
wording  and  to  be  coherent  with  the  remainder  of  the  Article.  It  should  be  as  follows:  “In 
taking  a  decision  on  the  plan  or  programme  relating  to  the  environment,  Community 
institutions and bodies shall take due account of the outcome of the public participation. They 
shall  inform  the  public  referred  to  in  paragraph  2  about  the  plan  or  programme  adopted, 
including  its  text,  and  of  the  reasons  and  considerations  upon  which  it  is  based,  including 
information about the public participation process.” 

Amendments 26 and 27 concerning the timing for adaptations of rules of procedures and date 
of application can be accepted in principle by the Commission. The Commission accepts to 
set an end-date for those events, from entry into force, which is not contained in the Common 
Position.  However,  the  delay  given  by  the  EP  amendments  is  too  short  to  allow  for  the 
necessary  thorough  adaptation  of  administrative  procedures  and  rules  of  all  Community 
institutions  and  bodies.  In  addition,  the  date  for  taking  effect  of  adaptations  of  the  rules  of 
procedure (amendment 26) should be the same as the date for application of the Regulation 
(amendment  27).  Hence,  amendment  26  should  be  reworded  referring  to  the  “date  of 
application of this Regulation”, and amendment 27 should provide for a date of application 
which 
the  practical  requirements  and  procedures  for  adapting 
administrative procedures and rules in the said institutions and bodies. A delay in the order of 
twelve  months  after  the  date  of  entry  into  force  of  the  Regulation  would  appear  realistic  to 
cater for this necessity. 

into  account 

takes 

4.2. 

Amendments rejected by the Commission 

The Commission cannot accept amendments 2 and 7, aiming to include information on “the 
state  of  progress  of  proceedings  for  infringement  of  Community  law”  in  the  definition  of 
environmental  information.  Likewise,  it  cannot  accept  amendment  12  according  to  which 
such information is to be contained in databases and registers as environmental information. 
While,  in  practice,  the  Commission  and  the  Court  of  Justice  websites,  for  example,  provide 
for information on decisions concerning infringement proceedings, this is done as a matter of 
transparency  in  a  horizontal  way,  with  no  specific  treatment  of  this  being  “environmental 
information”.  Furthermore,  the  definition  of  “environmental  information”  under  the  Aarhus 
Convention does not name such a category. 

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Amendment 3 relating to the definition of ‘plans and programmes relating to the environment’ 
is not acceptable as it would refer in a recital to the “priorities of Community environmental 
policy” that are not mentioned in the definition (Article 2(1)(e)) itself. 

Amendments 4, 14, 15 cannot be accepted. These amendments aim at applying the regime of 
exceptions of Directive 2003/4 on access to environmental information to requests for access 
to  environmental  information  from  Community  institutions.  The  Common  Position  builds 
upon Regulation N° 1049/2001 on access to documents, which is extended to all Community 
institutions and bodies. Applying Directive 2003/4 for exceptions would lead to two different, 
in part overlapping, regimes regarding access to documents in general and to environmental 
information in particular. This would, in practice, result in a non-transparent system.  

The Commission cannot accept amendment 5, and related parts in other amendments, which 
aims at extending the public participation requirements to the preparation of “policies”. In this 
respect,  the  Aarhus  Convention  leaves  some  margin  to  Parties.  Article  7,  4th  sentence 
formulates that to the extent appropriate, Parties shall “endeavour to provide opportunities for 
public participation in the preparation of policies relating to the environment”. Given also that 
the concept of ‘policies’ is difficult to circumscribe it is not conceivable to provide for such 
an obligation in a legally binding way in a Regulation. 

Amendment 8, requiring public participation also in the preparation of plans and programmes 
funded by Community institutions and bodies is not acceptable. The Aarhus Convention refers 
to  public  participation  when  plans  and  programmes  are  prepared  by  public  authorities. 
Likewise, concerning environmentally significant projects under Article 6 of the Convention, 
public  participation  is  required  in  the  decision  concerning  their  permitting,  there  is  no  such 
requirement concerning decisions on funding. As the permitting takes place at Member States 
level, public participation would be provided for at this level. The Commission cannot accept 
amendment  9  which  would  eliminate  the  specific  exclusion  of  ‘banking’  plans  from  the 
definition of ‘plans and programmes relating to the environment’. The Commission agreed to 
this clarification which is now included in the Common Position.  

Amendment 10 cannot be accepted. It would add, in the definition of ‘environmental law’ and 
with  respect  to  promoting  measures  at  international  level,  that  these  would  also  aim  to  deal 
with “local” environmental problems. The present definition takes up literally the wording of 
Article  174  (1)  in  this  respect,  which  refers  to  “regional  or  worldwide”  environmental 
problem and should hence not be modified. 

Amendment 11 contains an obligation to inform the public of the location of all information 
that  is  not  electronically  available,  and  how  it  can  be  obtained.  The  amendment  containing 
such  a  wide  and  general  requirement  is  not  acceptable  for  the  Commission.  In  practice, 
registers  of  the  institutions  also  contain  references  to  documents  that  are  not  electronically 
available, and to the service responsible where this document can be requested. 

Amendment 13 is not acceptable. It requires Community institutions to ensure that not only 
information  compiled  by  them,  but  also  on  their  behalf,  is  up-to  date,  accurate  and 
comparable. There is no corresponding obligation in the Aarhus Convention. 

Amendment  17  cannot  be  accepted.  It  would  introduce  a  new  Article  enabling  Community 
institutions  and  bodies  not  covered  by  Regulation  N°  1049/2001  to  make  a  “reasonable 
charge” for supplying information. The amendment is not pertinent, as by virtue of Article 3 
of  the  common  position,  Regulation  N°  1049/2001  applies  to  ‘Community  institutions  and 
bodies’ as concerns access to environmental information, including its provisions on charges.  

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The Commission cannot accept amendment 18, which consists in adding “threat to life”, next 
to  “threat  to  human  health”,  and  replacing  “minimise”  by  “mitigate”  harm  arising  from  the 
threat.  The  wording  in  the  Common  Position  is  in  line  with  the  Aarhus  Convention  and 
Directive 2003/4/EC, and the motivation for different wording is not apparent. 

Amendment  21  aims  at  extending  the  delay  for  a  request  for  internal  review  of  an 
administrative act from four weeks following adoption to eight weeks. This is not acceptable 
for the Commission, as such a long delay would risk to slow down procedures and to create a 
period  of  legal  uncertainty.  The  ‘four-week  deadline’  is  also  in  line  with  the  proposal  for  a 
Directive on access to justice in environmental matters.  

The Commission cannot accept amendments 28 and 29, adding an additional requirement for 
NGOs to be admitted to internal review, to be law-abiding. Such a requirement is difficult to 
verify for the Community institution or body in question and does not appear justified in the 
light of the objectives of the Regulation. Finally, the Commission does not accept amendment 
23, aiming to add to the NGOs that can request administrative review, next to those having 
the  primary  objective  of  promoting  environmental  protection,  also  those  “promoting 
sustainable  development.”  This  criterion  is  potentially  very  wide,  and  it  will  be  difficult  to 
delimit the organisations covered.  

5. 

CONCLUSION 

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as set out 
above. 

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