CELEX: 51988PC0484
Language: en
Date: 1988-10-24
Title: Proposal for a COUNCIL DIRECTIVE on the freedom of access to information on the environment (presented by the Commission)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (88) 484
Vol. 1988/0170
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der Europäischen Atomgemeinschaft (ABI. L 43 vom 15.2.1983, S. 1), zuletzt geändert durch die
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                          COM(88 ) 484 final
                                          Brussels , 28 November 1988
                           Proposai for a
                         COUNCIL DIRECTIVE
   on the freedom of access to information on the environment
                  ( presented by the Commission )
 ---pagebreak---                              EXPLANATOEY     RANDOM
I.  Introduction
(a) The action programmes of the European Community on the environment of
     1973,1 1977,2 1983^ and 1987^ have illustrated the important role
     that public information Should play in the campaign to safeguard «.TY^
     improve the quality of the environment . In particular , in the fourth
     action programme the Commission drew attention once more to the ne9d
     to render the whole process of regulation and application of existing
     rules in this area more transparent , especially as far as public
     information is concerned . It also stressed that particular attention
     should be paid to situations where access to information guarantees
     better protection of the individual or the environment , either by
     better application of the regulations or by other means . Tne
     Commission also declared that it should be possible to devise ways of
     improving public access to the information held by environmental
     authorities , while at the same time giving protection to information
     which can legitimately be regarded as confidential . The Commission
     announced in particular that it would study the need for , and
     desirability of , a Community "Freedom of Environmental Information
     Act " and would make appropriate proposals .
     The Commission 's viewpoint is shared by the other Community
     institutions . The Resolution of the Council of the European
     Communities and of the representatives of the Governments of the
     Member States , meeting within the Council , of 19 October 1987 on the
     continuation and implementation of a European Community policy and
     action programme on the environment ( 1987-1992)5 states that
     Community action should concentrate on certain priority areas , while
     complying with the respective responsibilities of the Community and
     the Member States , and calls in this context for a greater effort to
     improve access to information on the environment . In addition , the
     European Parliament asked, the Commission in its opinion on the fourth
     action programme delivered on 14 May 1987 to implement a series of
     measures in the field of information designed in particular to give
     each individual the possibility of access to information on the
     environment . ®
(b) To ensure that the objectives set out in the fourth action programme
     are achieved the first need is to improve the possibilities open to
     individuals of gaining access to data on the environment held by the
     public authorities .    These authorities hold complete and highly
     accurate information on -the state of the environment and the real or
     potential sources of pollution on account of the fact that
     environmental protection measures are put into practioe , by and large ,
     at national , regional or local level .
     However , free access to information on the environment must not only
     be imposed on the public authorities of the Member States but also on
     the Community institutions and the Commission in particular . The
     reasons for the need to broaden the possibilities of access to
     information held by national , regional or local administrations apply
1 OJNo C 112 , 20.12.1973 .
20JNOC 139 , 13.6.1977 .
3 OJ No C 46 , 17.2.1983 .
4 OJ No C 70 , 18.3.1987 .                                          <*
5 OJ No C 289 , 29.10.1987 .
6 OJ No C 156 , 15.6.1987 .
 ---pagebreak---                                       - 2 -
      equally to Coifflmmity institutions , especially given the extent of the
      powers conferred on the European Community in environmental matters .
      For this reason this proposal will he followed by other initiatives
      designed to introduce the same transparency within the Coiranunity
      institutions as proposed for the national authorities in the Member
      States .
(c) By the same token , the importance to be attached to active publicity
      must not be neglected , i.e. publication as a matter of routine by
      public authorities and institutions of data relating to the state of
      the environment as part of an overall strategy aimed at ensuring the
      transparency of environmental measures taken by the public authorities
      and at increasing public awareness .
II .  Legislation and administrative practice In the Member States
      Comparison of the legislation in force in the Member States has
      revealed that the arrangements for free access to information held by
      the authorities on the environment are not entirely satisfactory
      everywhere in the Community . The most significant arrangements in the
      Member States on access to information on the environment are summed
      up in the Annex .
      In addition , active information , often in the form of publication of
      reports on the state of the environment , plays an Important part in
      every Member State 's environmental protection programme , though the
      rules vary .
III . Legal basis of the proposai
      Completely free access to information held by the authorities on the
      environment would make citizens feel more directly responsible for
      protecting their environment and tighten controls on activities which
      could cause pollution . This would make an effective contribution
      towards attaining the objectives of action by the Community relating
      to the environment set out in Artiole 130r(l ) of the EEC Treaty ,
      notably by means of more effective action to prevent environmental
      damage , one of the principles on which this action must be based .
      One other consideration provides further evidence of the advantages of
      greater access to information on the environment held by the
      authorities . The numerous disparities between the national laws on
      this subject create often insurmountable obstacles to access to
      information on transfrontier pollution . They can also create unequal
      conditions of competition .
      Community action is the only way to end all these obstacles .
      Consequently , there is a dear need for the Community to take action
      based on the principle set out in Article 130r(4) of the EEC Treaty .
      In the light of the foregoing this proposal is based on Article 130s
      of the EEC Treaty .
                                                                       3
 ---pagebreak---                                      - 3 -
IV . Objectives   general struoture and  •A'IMIA » ts nr> oertAl n Art.1 ni PM
(a) The objective of this proposal is to define a consistent series of
     principles allowing the publio greater acoess to information held, by
     the authorities on the environment (passive information) and paving
     the way for improvements in automatic dissemination of these data by
     the authorities (active information). Consequently , it covers the two
     main sides of government information policy .
(b) Article 1 is a basic provision laying down the two complementary
     objectives of this proposal : to guarantee freedom of access to
     information on the environment and to ensure widespread dissemination
     of this information by the respective authorities .
     Article 2 outlines the scope of the right of acoess to information and
     defines the concept of "information on the environment ".
     It then defines the concept of "information held by the public
     authorities " and defines which authorities are obliged to make the
     information they hold on the environment accessible to the public .
     Article 3 defines the holders of the right of access to information
     based on the need not to limit access to information only to those
     with a personal or direct interest .
     Articles 4 , 5 , 6 and 7 cover the various procedural aspects associated
     with the right of access to information .
     Article 8 takes account of the fact that the right of access to
     information is not unlimited . It sets out several exceptions to the
     right of acoess , all of them intended to protect public interests .
     Article 9 provides for the regular publication of national reports on
     the state of the environment and gives a broad outline of the aspects
     to be covered .
                                                                               V
 ---pagebreak---               PROPOSAL FOR A [·Α»Μ*ΜΙ
                             OXJNCIL DIRECTIVE (             [ ОЕ
                   ACCESS TO INFORMATION ON THE  ENVIRONNENT
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
Having regard to the Treaty establishing the European Economic Community ,
and in particular Article 130s thereof ,
Having regard to the proposal from the Commission , 1
Having regard to the opinion of the European Parliament , 2
Having regard to the opinion of the Economic and Social Committee , 3
Considering the principles and objectives defined by the action programmes
of the European Communities on the environment of 1973 , 4 19775 and
1983,® and more particularly the action programme of 1987 , 7 which
underlines the "need to render the whole process of regulation and
application of existing rules more transparent , particularly as far as
public information in concerned" and calls for devising " ways of improving
public access to information held by environmental authorities ".
Whereas the Council of the European Communities and the representatives of
the Governments of the Member States , meeting within the Council , declared
in their Resolution of 19 October 1987 on the continuation and
implementation of a European Community policy and action programme on the
environment ( 1987-1992)8 that it was important , in compliance with the
respective responsibilities of the Community and the Member States , to
concentrate Community action on pertain priority areas , including better
access to information on the environment ;
Whereas the European Parliament also stressed , in its opinion on the
fourth action programme of the European Communities on the environment , 9
the need to enable each individual to gain access to information on the
environment by way of specific Community action ;
Whereas the public authorities hold a large quantity of data on the
environment , collected or prepared in the exercise of their legal powers ;
1
2
3
4 0JNOC   112 , 20.12.1973 .
5 0JNOC   139 , 13.6.1977 .
6 OJ No C 46 , 17.2.1983 .
7 0JNO C  70 , 18.3.1987 .
8OJN0C    289 , 29.10.1987 .
                                                                       S
9 OJ No C 156 , 15.6.1987 .
 ---pagebreak---                                         - 2 -
  Whereas free access to data on the environment held by the public
  authorities would help to increase public participation in the procedures
  to control pollution and prevent damage to the environment ; whereas ,
  accordingly , it could make an effective contribution to achieving the
  objectives of Community action on the environment , in line with
  Article 13Qr(2) of the EEC Treaty ;
  Whereas isolated action by the Member States cannot adequately guarantee
  the elimination of obstacles to access to data on the environment held by
  the public authorities , particularly in the case of cross-frontier
  pollution ; whereas , consequently , Community action seems necessary in
  accordance with Article 130r(4) of the EEC Treaty .
  Whereas the numerous disparities between the laws in force in the Member
  States concerning access to data on the environment held by the public
  authorities can create unequal conditions of competition ;
  Whereas the obligations imposed by this Directive should place no new
  administrative or financial burdens on businesses ;
  Whereas the priority objective of Community action should be to guarantee ,
  throughout the Community , free access to data held by the public
  authorities concerning the state of the environment , polluting activities
  or activities likely to damage the environment and protection of remedial
  measures taken or envisaged ;
  Whereas not only the data contained in written documents but also the data
  incorporated in date-processing bases and visual recordings held by the
  public authorities must be accessible to the public ;
  Whereas free access must be ensured even with regard to data supplied to
  the government by other persons where the government could legitimately
  demand transmission of that information or obtain it itself ;    whereas it
  must not be limited solely to persons who can prove a legitimate interest
  in the case ;
  Whereas a provision recognizing the right of access of every natural or
  legal person to information on the environment held by the public
, authorities would eliminate any discrimination on the grounds of the
  nationality or place of residence of natural persons or of the articles of
  association of place of business of legal persons and thus guarantee
  elimination of the obstacles to the freedom of access to information on the
  environment in the case of cross-frontier pollution ;
 ---pagebreak---                                     - 3 -
Whereas decisions refusing the supply or consultation of data on the
environment held by the public authorities must be justified and notified
in writing ; whereas the applicant must always have the possibility of
appealing against such decisions ;
Whereas the protection of the essential interests of the Member States ,
companies and private individuals requires the establishment of a number of
exceptions to the right of access to information on the environment held by
the public authorities ;
Whereas active publicity should play an important role as part of an
overall strategy to disseminate information on the environment ; whereas ,
consequently , it seems necessary to make the publication of national
reports on the state of the environment obligatory , to lay down the minimum
frequency of publication of these reports and to harmonize the broad
outline of their content ,
HAS ADOPTED THIS DIRECTIVE :
                                                                           4
 ---pagebreak---                                         - 4 -
                                      Article 1
Freedom of aooess to Information on the environment held by the public
authorities and its dissemination shall be ensured throughout the Community
in accordance with the provisions of this Directive .
                                      Article 2
For the purposes of this Directive :
(a)    " Information relating to the environment " means «n data , of a factual
      or legal nature , concerning :
       the state of water , air , soil , fauna , flora and natural sites find any
      changes therein ;
      publio or private projects and activities likely to damage the
      environment , or endanger human health and plant or animal species , in
       particular    as regards emission , discharge or release of substances , living
      organisms or energy into water , the air or soil and the manufacture
      and use of dangerous products or substances ;
      measures to preserve , protect and improve the quality of water , air ,
      soil , fauna , flora and natural sites plus measures designed to prevent
      damage and repair any damage caused .
(b)    " Information held by the public authorities " means all existing data
      collected or prepared by the bodies referred to in paragraph (c ) which
      are contained :
               in written documents , such as reports , studies , opinions and
               decisions , with the exception of unfinished documents ;
               in data-prooessing bases , and
               in visual reoordings .
This also includes information supplied by other people when the body
receiving the information had the right to obtain it itself or to demand
transmission of that information in exercising its legal powers .
 (c) " Public authorities " means State administrations and any public body
       or State-supervised body with powers at national , regional or local
       level .
                                                                               I
 ---pagebreak---                                     - 5 -
     Bodies exercising judicial powers or legislative bodies are not
included in the       definition in the preceding paragraph .
                                  Article 3
The right of access to information on the environment held by the public
authorities        be guaranteed to any natural or legal person without
their having to display an interest .
                                  Article 4
1.   Access to information contained in the written documents referred to
     at the first indent of Article 2(b) shall be , by written request and
     at the option of the applicant , either by consultation free-of-charge
     on the spot or by the issue of copies , in which case the applicant
     shall be charged the actual cost of reproduction .
2.   The information contained in data-prooessing bases and visual
     recordings in the possession of the authorities shall also be
     obtainable in written form under the conditions set out in the
     preceding paragraph .
                                  Article 5
1.   Any request for information on the environment held by the public
     authorities shall Indicate as accurately as possible the purpose of
     the request .
2.   The authorities shall lake any measures needed to identify and make
     available to the applicant the documents containing the information in
     question .
                                  Article 6
1.   Any refusal to supply information on the environment held by the
     public authorities shall be explained in a reasoned decision which
     shall be notified in writing to the applicant .
2.   Failure to give notification within a period of one month shall amount
     to refusal .
                                  Article 7
Within the scope of this Directive the justification of an express or tacit
decision to refuse information by the authorities shall, be subject to
administrative and legal control by the means available to each national
legal system .
                                                                           3
 ---pagebreak---                                        - 6 -
                                     Article 8
1.   The right of access to information guaranteed by this Directive may bs
     restricted where it would affect :
            the secrecy of government proceedings ;
            the secrecy of international negotiations ;
            the secrecy of national defence ;
            State security or public security ;
            the secrecy of procedures brought before the courts ;
            trade and industrial secrecy ;
            privacy and , in particular , compliance with national provisions
            to protect the confidentiality of personal data held in
            administrative archives and files .
2.   The documents held by public authorities shall be supplied in part
     where it is possible to eliminate from the copy to be supplied to the
     applicant items which , if disseminated , would affect the interests
     referred to in the preceding paragraph .
3.   Reasons involving privacy or trade and industrial secrecy relating to
     facts which are personal to the applicant may not be held against him .
4.   The public authorities may refuse any manifestly unreasonable request .
                                     Article 9
1.   At least every three years from 1 January 1992 onwards Member States
     shall publish and disseminate a report on the state of the environment
     containing a general analysis of the national situation , the state of
     water , air , soil , flora , fauna and natural sites and a description of
     the principal measures taken or planned to preserve , protect and
     improve the quality of the environment and to repair any damage
     oaused .
2.   The national reports on the state of the environment shall be
     transmitted to the Commission as soon as they are published .
                                    Article 10
1.   Member States shall bring into force the laws , regulations and
     administrative provisions necessary to comply with this Directive by
      ... at the latest . They shall forthwith inform the Commission
     thereof .
2.   Member States shall ooornmunioate to the Commission the main provisions
     of national law which, they adopt in the field governed by this
     Directive .
                                     Article 11
This Directive is addressed to the Member States .
                                                                            ήθ
 ---pagebreak---                                                             Annex
                   Legislation In force In the Member States
BETGTTTM                                     DENMARK
No general legislation on access to          Law of 19 December 1985 on the
information .                                right of access to government
Access to information in the course of       documents .
pertain licensing procedures .
FEDERAL REPUBLIC OF GERMANY                  T4RKM ÍK
No general legislation .                     Article 10(3 ) of the
                                             Constitution .
The Law of 25 May 1976 on
administrative procedures entitles all       law 1599/ 1986 on relations
parties to a procedure to consult the        between the State and citizens
relevant documents .                         guarantees free public access to
Specific licensing procedures .              government documents .
Other specific legislation has set up
emission and discharge registers which
are open to members of the public with
an interest in the case .
SPAIN                                        FRANCE
Article 105 of the Constitution (not         Law 78/753 of 17 July 1987
yet fully implemented).                      allows all members of the public
                                             access to information held by
The 1958 Law on administrative               the authorities .
procedures allows only persons
directly concerned to consult official       This Law has set up a commission
files .                                      on acoess to official documents
                                             to safeguard freedom of access .
Access to information in the course of
pertain licensing procedures .
                                             ITALY
IRELAND
                                             No general legislation .
No general legislation .
                                             Law 349/ 1986 of 8 July 1986
Specific legislation such as the 1976        stipulates that all citizens are
Water Pollution Control Act provides         entitled to access to
for the establishment of pertain             information on the state of the
public registers .                           environment .
                                                                         Ή
                                                                              (
 ---pagebreak---                                               lïpsjwjjtâLANDS
LCIXBMBQtJEG                                  Law of 9 November 1973 on
                                              administrative trs .u orency , as
A direct personal Interest in the case        amended by the Law of
is required before access is allowed           16 December 1981 .
to information held by the authorities
(Regulation of 8 June 1977 on
government procedure) .
Public enquiries are included in
various licensing procedures .
                                              UMT.RD KINGDOM
                                              No general legislate • 'n .
Article uciAl ) cf cbe Cbootltution           Alongside public er          In
                                               the course of HOST-* !
                                              procedures , tic livi corirol of
                                               Pollution Act ar.f other sosoifio
                                               Xeglo” atioa provide* for tic
                                               esicKLishirbdt of ptfj o
procedures , politic pertlaip %■ :*dom is     registers .
one of 'the principles eostriusd in the
basic Law of 7 April 1967 on -the
envJrom\eut. .
In addition to the above-mentioned general laws on access to information ,
other provisions in Denmark , France , Italy , Greece and the Netherlands
provide for public participation and information , particularly in the
course of licensing procedures .