CELEX: 51990PC0091
Language: en
Date: 1990-03-19
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE ON THE FREEDOM OF ACCESS TO INFORMATION ON THE ENVIRONMENT

N o C 102/6                            Official Journal of the European Communities                                  24. 4. 90
                                                               II
                                                       (Preparatory Acts)
                                                  COMMISSION
              Amended proposal for a Council Directive on the freedom of access to information on the
                                                        environment (')
                                                       COM(90) 91 final
              (Submitted by the Commission, pursuant to Article 149, paragraph 3 of the EEC Treaty on
                                                        20 March 1990)
                                                        (90/C 102/07)
              C) OJ No C 335, 30. 12. 1988, p. 5 [COM(88) 484 final].
                      ORIGINAL PROPOSAL                                                  AMENDED PROPOSAL
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                           THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European              Having regard to the Treaty establishing the European
Economic Community, and in particular Article 130s                 Economic Community, and in particular Article 130s
thereof,                                                           thereof,
Having regard to the proposal from the Commission,                 Having regard to the proposal from the Commission,
Having regard       to    the   opinion  of   the  European        Having regard       to   the    opinion of the   European
Parliament ('),                                                    Parliament (x),
Having regard to the opinion of the Economic and                   Having regard to the opinion of the Economic and
Social Committee,                                                  Social Commitee (2),
Considering the principles and objectives defined by the           Considering the principles and objectives defined by the
action programmes of the European Communities on the               action programmes of the European Communities on the
environment of 1973 ('), 1977 (2) and 1983 (J) and more            environment of 1973 ( J ), 1977 (4) and 1983 (5) and more
particularly the action programme of 1987 ("), which               particularly the action programme of 1987 (6), which
underlines the 'need to render the whole process of regu-          underlines the 'need to render the whole process of regu-
lation and application of existing rules more transparent,         lation and application of existing rules more transparent,
particularly as far as public information is concerned'            particularly as far as public information is concerned'
and calls for devising 'ways of improving public access to         and calls for devising 'ways of improving public access to
information held by environmental authorities';                    information held by environmental authorities';
O   OJ No  C  112, 20. 12. 1973.                                   0)  OJ No  C  120, 16. 5. 1989, p. 231.
(2) OJ No  C  139, 13. 6. 1977.                                    (2) OJ No  C  139, 5. 6. 1989, p. 47.
(3) OJ No  C  46, 17. 2. 1983.                                     (») OJ No  C  112, 20. 12. 1973.
(4) OJ No  C  70, 18. 3. 1987.                                     (4) OJ No   C 139, 13. 6. 1977.
                                                                   (») OJ No  C  46, 17. 2. 1983.
                                                                   (6) OJ No   C 70, 18. 3. 1987.
 ---pagebreak---  24. 4. 90                             Official Journal of the European Communities                            No C 102/7
                      ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
 Whereas the Council of European Communities and the              Whereas the Council of the European Communities and
 representatives of the Governments of the Member                 the representatives of the Governments of the Member
 States, meeting within the Council, declared in their            States, meeting within the Council, declared in their
 resolution of 19 October 1987 on the continuation and            resolution of 19 October 1987 on the continuation and
 implementation of a European Community policy and                implementation of a European Community policy and
 action programme on the environment (1987 to 1992) (*)           action programme on the environment (1987 to 1992) (*)
 that it was important, in compliance with the respective         that it was important, in compliance with the respective
 responsibilities of the Community and the Member                 responsibilities of the Community and the Member
 States, to concentrate Community action on certain               States, to concentrate Community action on certain
 priority areas, including better access to information on       priority areas, including better access to information on
 the environment;                                                the environment.
Whereas the European Parliament also stressed, in its            Whereas the European Parliament also stressed, in its
 opinion on the fourth action programme of the                   opinion on the fourth action programme of the
 European Communities on the environment (2) the need            European Communities on the environment (2), the need
to enable each individual to gain access to information          to enable each individual to gain access to information
on the environment by way of specific Community                  on the environment by way of specific Community
action;                                                          action;
                                                                  New recital
                                                                 Whereas freedom of information is an essential feature
                                                                 of a democratic society;
Whereas the public authorities hold a large quantity of          Whereas the public authorities hold a large quantity of
data on the environment, collected or prepared in the            data on the environment, collected or prepared in the
exercise of their legal powers;                                  exercise of their legal powers;
Whereas free access to data on the environment held by           Whereas free access to data on the environment held by
the public authorities would help to increase public             the public authorities would help to increase public
participation in the procedures to control pollution and         participation in the procedures to control pollution and
prevent damage to the environment; whereas,                      prevent damage to the environment;               whereas,
accordingly, it could make an effective contribution to          accordingly, it could make an effective contribution to
achieving the objectives of Community action on the              achieving the objectives of Community action on the
environment, in line with Article 130r (2) of the EEC            environment, in line with Article 130r (2) of the EEC
Treaty;                                                          Treaty;
Whereas isolated action by the Member States cannot              Whereas isolated action by the Member States cannot
adequately guarantee the elimination of obstacles to             adequately guarantee the elimination of obstacles to
access to data on the environment held by the public             access to data on the environment held by the public
authorities, particularly in the case of cross-frontier          authorities, particularly in the case of cross-frontier
pollution; whereas, consequently, Community action               pollution, whereas, consequently, Community action
seems necessary in accordance with Article 130r (4) of           seems necessary in accordance with Article 130r (4) of
the EEC Treaty;                                                  the EEC Treaty;
Whereas the numberous disparities between the laws in            Whereas the numerous disparities between the laws in
force in the Member States concerning access to data on          force in the Member States concerning access to data on
the environment held by the public authorities can create        the environment held by the public authorities can create
unequal conditions of competition;                               unequal conditions of competition;
(*) OJ No C 289, 29. 10. 1987.                                   (') OJ No C 289, 29. 10. 1987.
O OJ No C 156, 15. 6. 1987.                                      (2) OJ No C 156, 15. 6. 1987.
 ---pagebreak--- N o C 102/8                           Official Journal of the European Communities                                24. 4. 90
                     ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
Whereas the obligations imposed by this Directive should        Whereas the obligations imposed by this Directive should
place no new administrative or financial burdens on busi-       place no new administrative or financial burdens on busi-
nesses;                                                         nesses;
Whereas the priority objective of Community action              Whereas the priority objective of Community action
should be to guarantee, throughout the Community, free          should be to guarantee, throughout the Community, free
access to data held by the public authorities concerning        access to data held by the public authorities concerning
the state of the environment, polluting activities or acti-     the state of the environment, polluting activities or acti-
vities likely to damage the environment and protection of       vities likely to damage the environment and protection of
remedial measures taken or envisaged;                           remedial measures taken or envisaged;
Whereas not only the data contained in written                  Whereas not only the data contained in written
documents but also the data incorporated in data-               documents but also the data incorporated in data-
processing bases and visual recordings held by the public       processing bases and acoustic and visual recordings held
authorities must be accessible to the public;                   by the public authorities must be accessible to the public;
Whereas free access must be ensured even with regard to         Whereas free access must be ensured even with regard to
data supplied to the government by other persons where          data supplied to the government by other persons where
the government could legitimately demand transmission           the government could legitimately demand transmission
of that information or obtain it itself; whereas it must        of that information or obtain it itself; whereas it must
not be limited solely to persons who can prove a                not be limited solely to persons who can prove a
legitimate interest in the case;                                legitimate interest in the case;
Whereas a provision recognizing the right of access of          Whereas a provision recognizing the right of access of
every natural or legal person to information on the envi-       every natural or legal person to information on the envi-
ronment held by the public authorities would eliminate          ronment held by the public authorities would eliminate
any discrimination on the grounds of the nationality or         any discrimination on the grounds of the nationality or
place of residence of natural persons or of the articles of     place of residence of natural persons or of the articles of
association of place of business of legal persons and thus      association of place of business of legal persons and thus
guarantee elimination of the obstacles to the freedom of        guarantee elimination of the obstacles to the freedom of
access to information on the environment in the case of         access to information on the environment in the case of
cross-frontier pollution;                                       cross-frontier pollution;
Whereas decisions refusing the supply or consultation of        Whereas decisions refusing requests for information must
data on the environment held by the public authorities          be justified and notified in writing; whereas the applicant
must be justified and notified in writing; whereas the          must always have the possibility of appealing against
applicant must always have the possibility of appealing         such decisions;
against such decisions;
Whereas the protection of the essential interests of the        Whereas the protection of the essential interests of the
Member States, companies and private individuals                Member States, companies and private individuals
requires the establishment of a number of exceptions to         requires the establishment of a number of exceptions to
the right of access to information on the environment           the right of access to information on the environment
held by the public authorities;                                 held by the public authorities;
Whereas active publicity should play an important role as       Whereas active publicity should play an important role as
part of an overall strategy to disseminate information on       part of an overall strategy to disseminate information on
the environment; whereas, consequently, it seems                the environment; whereas, consequently, it seems
necessary to make the publication of national reports on        necessary to make the publication of national reports on
the state of the environment obligatory, to lay down the        the state of the environment obligatory, to lay down the
minimum frequency of publication of these reports and           minimum frequency of publication of these reports and
to harmonize the broad outline of their content,                to harmonize the broad outline of their content,
 ---pagebreak--- 24. 4. 90                              Official Journal of the European Communities                             No C 102/9
                      ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
HAS ADOPTED THIS DIRECTIVE:                                      HAS ADOPTED THIS DIRECTIVE:
                           Article 1                                                       Article 1
Freedom of access to information on the environment              Freedom of access to information on the environment
held by the public auhtorities and its dissemination shall       held by the public authorities and its dissemination shall
be ensured throughout the Community in accordance                be ensured throughout the Community in accordance
with the provisions of this Directive.                           with the provisions of this Directive.
                           Article 2                                                       Article 2
For the purposes of this Directive:                              For the purposes of this Directive:
(a) 'Information relating to the environment' means all          (a) 'Information relating to the environment' means all
    data, of a factual or legal nature, concerning:                  data, of a factual or legal nature, concerning:
    — the state of water, air, soil, fauna, flora and                — the state of water, air, soil, fauna, flora and
        natural sites and any changes therein,                           natural sites and any changes therein,
    — public or private projects and activities likely to            — public or private projects and activities likely to
        damage the environment, or endanger human                        damage the environment, or endanger human
        health and plant or animal species, in particular                health and plant or animal species, in particular
        as regards emission, discharge or release of                     as regards emission, discharge or release of
        substances, living organisms or energy into water,               substances, living organisms or energy into water,
        the air or soil and the manufacture and use of                   the air or soil, noise levels and radioactive
        dangerous products or substances,                                radiation, and the manufacture and use of
                                                                         dangerous products or substances,
    — measures to preserve, protect and improve the                  — measures to preserve, protect and improve the
        quality of water, air, soil, fauna, flora and                    quality of water, air, soil, fauna, flora and
        natural sites plus measures designed to prevent                  natural sites plus measures designed to prevent
        damage and repair any damage caused.                             damage and repair any damage caused.
                                                                     This concerns in particular data relating to emissions
                                                                     and discharges from authorized or declared instal-
                                                                     lations,     actual    emissions     and    discharges,
                                                                     measurement, surveillance and monitoring results,
                                                                     particularly where limit values laid down have been
                                                                     exceeded, and data on the nature and composition of
                                                                     dangerous products and substances.
(b) 'Information held by the public authorities' means all       (b) 'Information held by the public authorities' means all
    existing data collected or prepared by the bodies                available data collected or prepared by the bodies
    referred to in paragraph (c) which are contained:                referred to in paragraph (c) which are contained:
                                                                     — in registers, land registers and inventories,
        in written documents, such as reports, studies,              — in written documents, such as reports, studies,
        opinions and decisions, with the exception of                    opinions and decisions,
        unfinished documents,
        in data-processing bases, and                                    in data-processing bases, and
        in visual recordings.                                             in accoustic and visual recordings, with the
                                                                          exception of unfinished and internal documents.
 ---pagebreak--- No C 102/10                              Official Journal of the European Communities                                  24. 4. 90
                          ORIGINAL PROPOSAL                                                  AMENDED PROPOSAL
    This also includes information supplied by other                    This also includes information supplied by other
     people when the body receiving the information had                 people when the body receiving the information had
     the right to obtain it itself or to demand transmission            the right to obtain it itself or to demand transmission
     of that information in exercising its legal powers.                of that information in exercising its legal powers.
(c) 'Public authorities' means State administrations and           (c) 'Public authorities' means State administrations and
     any public body or State-supervised body with                      any other public body or body with public service
     powers at national, regional or local level.                       prerogatives with environmental powers at national,
                                                                        regional or local level.
     Bodies exercising judicial powers or legislative bodies            Bodies exercising judicial powers or legislative bodies
     are not included in the definition in the proceeding               are not included in the definition in the preceding
     paragraph.                                                         paragraph.
                           Article 3                                                          Article 3
The right of access to information on the environment              The right of access to information on the environment
held by the public authorities shall be guaranteed to any          held by the public auhtorities shall be guaranteed to any
natural or legal person without their having to display an         natural or legal person without their having to display an
interest.                                                          interest.
                           Article 4                                                          Article 4
1.    Access to information contained in the written                1.    Access to information contained in the documents
documents referred to at the first indent of Article 2 (b)         referred to in Article 2 (b) shall be, by written request,
shall be, by written request and at the option of the              either by consultation free-of-charge on the spot or by
applicant, either by consultation free-of-charge on the            the issue of copies or by graphical or sound repro-
spot or by the issue of copies, in which case the applicant        ductions.
shall be charged the actual cost of reproduction.
2.    The information contained in data-processing bases           2.     The applicant may be charged the cost of such
and visual recordings in the possession of the authorities         access provided it does not exceed the actual cost.
shall also be obtainable in written form under the
conditions set out in the preceding paragraph.
                           Article 5                                                          Article 5
1.    Any request for information on the environment                1.    Any request for information on the environment,
held by the public authorities shall indicate as accurately        held by the public authorities shall give an accurate indi-
as possible the purpose of the request.                            cation of the purpose of the request.
2.    The authorities shall take any measures needed to            2.     The authorities shall take any measures needed to
identify and make available to the applicant the                   identify and make available to the applicant the
documents containing the information in question.                  documents containing the information in question.
                           Article 6                                                          Article 6
                                                                                       (becomes Article 7)
1.    Any refusal to supply information on the envi-                1.    Any refusal of requests for information shall be
ronment held by the public authorities shall be explained           accompanied by a reasoned explanation which shall be
in a reasoned decision which shall be notified in writing           notified in writing to the applicant.
to the application.
 ---pagebreak---  24. 4. 90                              Official Journal of the European Communities                             N o C 102/11
                      ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
2.     Failure to give notification within a period of one        2.     Where details or parts of documentation are
month shall amount to refusal.                                    omitted, there should be an indication of where the
                                                                  omitted information should be inserted in the existing
                                                                  information.
                                                                  3.     Failure to give notification within a period of one
                                                                  month shall amount to refusal.
                           Article 7                                                        Article 7
                                                                                       (becomes Article 8)
Within the    scope of this Directive the justification of an     Any decision to refuse information by the authorities in
express or    tacit decision to refuse information by the         the areas covered by this Directive shall be subject to
authorities   shall be subject to administrative and legal        administrative and legal control by the means available
control by    the means available to each national legal          to each national legal system.
system.
                           Article 8                                                        Article 8
                                                                                       (becomes Article 6)
1.    The right of access to information guaranteed by            1.     The right of access to information guaranteed by
this Directive may be restricted where it would affect:           this Directive may be restricted where it would affect:
— the secrecy of government proceedings,                          — the secrecy of government proceedings,
— the secrecy of international negotiations,                      — the secrecy of international negotiations,
— the secrecy of national defence,                                — the secrecy of national defence,
— State security or public security,                              — State security or public security,
— the secrecy of procedures brought before the courts,            — the secrecy of procedures brought before the courts,
                                                                      inquiries or preliminary judicial investigations,
— trade and industrial secrecy,                                   — trade and industrial secrecy,
— privacy and, in particular, compliance with national            — privacy and, in particular, compliance with national
    provisions to protect the confidentiality of personal             provisions to protection the confidentiality of
    data held in administrative archives and files.                   personal data held in administrative archives and
                                                                      files.
2.    The documents held by public authorities shall be           2.     The documents held by public authorities shall be
supplied in part where it is possible to eliminate from the       supplied in part where it is possible to eliminate from the
copy to be supplied to the applicant items which, if              copy to be supplied to the applicant items which, if
disseminated, would affect the interests referred to in the       disseminated, would affect the interests referred to in the
preceding paragraph.                                              preceding paragraph.
3.    Reasons involving privacy or trade and industrial           3.     Reasons involving privacy or trade and industrial
secrecy relating to facts which are personal to the               secrecy relating to facts which are personal to the
applicant may not be held against him.                            applicant may not be held against him.
4.    The public authorities may refuse any manifestly            4.     The public authorities may refuse any manifestly
unreasonable request.                                             unreasonable request.
 ---pagebreak--- N o C 102/12                           Official Journal of the European Communities                                24. 4. 90
                     ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
                          Article 9                                                        Article 9
 1.   At least every three years from 1 January 1992              1.    At least every three years from 1 January 1992
onwards Member States shall publish and disseminate a            onwards Member States shall publish and disseminate a
report on the state of the environment containing a              report on the state of the environment containing a
general analysis of the national situation, the state of         general description of the national situation, the state of
water, air, soil, flora, fauna and natural sites and a           water, air, soil, flora, fauna and natural sites and a
description of the principal measures taken or planned to        description of the principal measures taken or planned to
preserve, protect and improve the quality of the envi-           preserve, protect and improve the quality of the envi-
ronment and to repair any damage caused.                         ronment and to repair any damage caused.
2.   The national reports on the state of the envi-              2.     The national reports on the state of the envi-
ronment shall be transmitted to the Commission as soon           ronment shall be transmitted to the Commission as soon
as they are published.                                           as they are published.
                         Article 10                                                       Article 10
1.   Member States shall bring into force the laws,              1.     Member States shall bring into force the laws,
regulations and administrative provisions necessary to           regulations and administrative provisions necessary to
comply with this Directive by . . . at the latest. They shall    comply with this Directive by 31 December 1990 at the
forthwith inform the Commission thereof.                         latest. They shall forthwith inform the Commission
                                                                 thereof.
2.   Member States shall communicate to the                      2.     Member States shall communicate to the
Commission the main provisions of national law which             Commission the main provisions of national law which
they adopt in the field governed by this Directive.              they adopt in the field governed by this Directive.
                         Article 11                                                       Article 11
This Directive is adressed to the Member States.                 This Directive is addressed to the Member States.