European Parliament legislative resolution on the Council common position for adopting 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 (6273/2/2005 – C6-0297/2005 – 2003/0242(COD))
(Codecision procedure: second reading)
The European Parliament
– having regard to the Council common position (6273/2/2005 – C6-0297/2005),
– having regard to its position at first reading(1)
on the Commission proposal to Parliament and the Council (COM(2003)0622)(2)
– having regard to Article 251(2) of the EC Treaty,
– having regard to Rule 62 of its Rules of Procedure,
– having regard to the recommendation for second reading of the Committee on the Environment, Public Health and Food Safety (A6-0381/2005),
1. Approves the common position as amended;
2. Instructs its President to forward its position to the Council and Commission.
Position of the European Parliament adopted at second reading on 18 January 2006 with a view to the adoption of Regulation
(EC) No .../2006
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
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, 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)
(1) Community legislation in the field of the environment aims to contribute inter alia
to preserving, protecting and improving the quality of the environment, promoting sustainable development
and protecting human health.
(2) The Sixth Community Environment Action Programme(3)
stresses the importance of providing adequate environmental information and 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.
(3) On 25 June 1998 the Community signed the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (hereinafter "the Aarhus Convention"). The Community approved the Aarhus Convention on 17 February 2005. Provisions of Community law should be consistent with that Convention.
(4) The Community has already adopted a body of legislation, which is evolving and contributes to the achievement of the objectives of the Aarhus Convention. Provision should be made to apply the requirements of the Convention to Community institutions and bodies.
(5) It is appropriate to deal with the three pillars of the Aarhus 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.
(6) As a general principle, the rights guaranteed by the three pillars of the Aarhus Convention are without discrimination as to citizenship, nationality or domicile.
(7) The Aarhus Convention defines public authorities in a broad way, the basic concept being that wherever public authority is exercised, there should be rights for individuals and their organisations. It is therefore necessary that the Community institutions and bodies covered by this Regulation be defined in the same broad and functional way. Under the Aarhus Convention, Community institutions and bodies can be excluded from the scope of application of the Convention when acting in a judicial 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.
(8) The definition of environmental information in this Regulation encompasses information in any form on the state of the environment. This definition has
been aligned to the definition adopted for Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information(6)and includes the state of progress of proceedings for infringement of Community law.
The definition of "document" in Regulation (EC) No 1049/2001 encompasses environmental information as defined in this Regulation.
(9) It is appropriate for this Regulation to provide for a definition of "plans and programmes" taking into account the provisions of the Aarhus Convention, in parallel with the approach followed in relation to the Member States' obligations under existing EC law. "Plans and programmes relating to the environment" should be defined in relation to their contribution to the achievement, or to their likely significant effect on the achievement, of the objectives and priorities
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, the definition of environmental law should refer to the objectives of Community policy on the environment as set out in the Treaty.
(11) Administrative acts of individual scope should be open to possible internal review where they have legally 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 administrative review body under provisions of the Treaty.
(12) The Aarhus Convention calls for public access to environmental information either following a request or by active dissemination by the authorities covered by the Convention. Regulation (EC) No 1049/2001 applies to the European Parliament, the Council and the Commission, as well as to agencies and similar bodies set up by a Community legal act. It provides rules for these institutions that comply to a great extent with the rules laid down in the Aarhus Convention. It is necessary to extend the application of Regulation (EC) No 1049/2001 to all other Community institutions and bodies.
(13) Where the Aarhus Convention contains provisions that are not, in whole or in part, to be found also in Regulation (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 information to be effective, environmental information of good quality is essential. It is therefore appropriate to introduce rules that oblige Community institutions and bodies to ensure such quality.
(15)Regarding exceptions to the rules on access to environmental information, the relevant provisions of Directive 2003/4/EC should apply also to Community institutions and bodies.
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
(16) Under Decision 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 Community(7)
, 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 communicable diseases. Decision No 1786/2002/EC of the European Parliament and of the Council of 23 September 2002(8)
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 Aarhus Convention. This Regulation should therefore apply without prejudice to Decision No 2119/98/EC and Decision No 1786/2002/EC.
(17) The Aarhus Convention requires Parties to make provisions for the public to participate during the preparation of plans and programmes relating to the environment. Such provisions are to include reasonable timeframes 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 participation, Community institutions and bodies should
identify the public which may participate.
(18) Article 9(3) of the Aarhus Convention provides for access to judicial or other review procedures for challenging acts and omissions by private persons and public authorities which contravene provisions of law relating to the environment. Provisions on access to justice should be consistent with the Treaty. It is appropriate in this context that this Regulation address only acts and omissions by public authorities.
(19) To ensure adequate and effective remedies, including those available before the Court of Justice of the European 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, law-abiding
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 unsuccessful, the non-governmental organisation concerned should be able to institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty.
(22) This Regulation respects the fundamental rights and observes the principles recognised by Article 6 of the Treaty on European
Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Article 37 thereof,
HAVE ADOPTED THIS REGULATION:
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 Aarhus Convention", by laying down rules to apply the provisions of the Convention to Community institutions and bodies, in particular by:
guaranteeing the right of public access to environmental information received or produced by Community institutions 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;
ensuring that environmental information is progressively made available and disseminated to the public in order to achieve its widest possible systematic availability and dissemination. To that end, the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted;
providing for public participation concerning plans, programmes and policies
relating to the environment;
granting access to justice in environmental matters at Community level under the conditions laid down by this Regulation.
2. In applying the provisions of this Regulation, the Community institutions and bodies shall endeavour to assist and provide guidance to the public with regard to access to information, participation in decision-making and access to justice in environmental matters.
1. For the purpose of this Regulation:
"Applicant" means any natural or legal person requesting environmental information;
"The public" means one or more natural or legal persons, and associations, organisations or groups of such persons;
"Community institution or body" means any public institution, 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;
"Environmental information" means any information in written, visual, aural, electronic or any other material form on:
the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in point (i);
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;
reports on the implementation of environmental legislation;
the state of progress of proceedings for infringement of Community law;
cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in point (iii); and
the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures 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);
"Plans and programmes relating to the environment" means plans and programmes,
which are subject to preparation, funding
and, as appropriate, adoption by a Community institution or body;
which are required under legislative, regulatory or administrative provisions; and
which contribute to, or are likely to have significant effects on, the achievement of the objectives of Community environmental policy, such as laid down in the Sixth Community Environment Action Programme, or in any subsequent general environmental action programme.
General environmental action programmes shall also be considered as plans and programmes relating to the environment.
This definition shall not include financial 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 emergency plans and programmes designed for the sole purpose of civil protection;
"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 local,
regional or worldwide environmental problems;
"Administrative act" means any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects;
"Administrative omission" means any failure of a Community 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:
Articles 81, 82, 86 and 87 of the Treaty (competition rules);
Articles 226 and 228 of the Treaty (infringement proceedings);
Article 195 of the Treaty (Ombudsman proceedings);
Article 280 of the Treaty (OLAF proceedings).
ACCESS TO ENVIRONMENTAL INFORMATION
Application of Regulation (EC) No 1049/2001
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.
For the purposes of this Regulation, the word "institution" in Regulation (EC) No 1049/2001 shall be read as "Community institution or body".
Collection and dissemination of environmental information
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 information progressively available in electronic databases that are easily accessible to the public through public telecommunication 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 telecommunication and/or electronic technology need not include information collected before the entry into force of this Regulation unless it is already available in electronic form. Where this
is not the case, it shall be clearly stated where that information can be found and how it can be obtained.
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 Articles
12(2) and (3) and 13
(1) and (2) of Regulation (EC) No 1049/2001, the databases or registers shall include the following:
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;
progress reports on the implementation of the items referred to under (a) where prepared or held in electronic form by Community institutions or bodies;
the state of progress of proceedings for infringement of Community law;
reports on the state of the environment as referred to in paragraph 4;
data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment;
authorisations with a significant impact on the environment, and environmental agreements, or a reference to the place where such information can be requested or accessed;
environmental impact studies and risk assessments concerning environmental elements, or a reference to the place where such information can be requested or accessed.
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.
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.
Quality of the environmental information
1. Community institutions and bodies shall, insofar as is within their power, ensure that any information that is compiled by them or on their behalf
is up-to-date, accurate and comparable.
2. Community institutions and bodies shall, upon request, inform the applicant of the place where information on the measurement procedures, including methods of 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.
Application of exceptions concerning requests for access to environmental information
1. Community institutions and bodies may deny access to environmental information or decide not to disseminate environmental information only by virtue of one of the exceptions provided for in Article 4 of Directive 2003/4/EC or by virtue of paragraph 2 of this Article
2. In addition to the exceptions set out in Article 4 of Regulation (EC) No 1049/2001, Community institutions and bodies may refuse access to environmental information where disclosure of the information would adversely affect the protection of the environment to which the information relates, such as the breeding sites of rare species
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 information is not held by that Community institution or body, it shall, as promptly as possible, but at the latest within 15 working days,
inform the applicant of the Community 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.
Community institutions and bodies not covered by Regulation (EC) No 1049/2001 may, where Article 10 of that Regulation is not applicable, make a reasonable charge for supplying information. They shall publicise and make available to applicants a schedule of charges which may be levied, indicating the circumstances in which they may be levied or waived and when the supply of information is conditional on the advance payment of such a charge.
In the event of an imminent threat to human health and life
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 environmental information which could enable it to take measures to prevent or minimise
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 particular by Decision No 2119/98/EC and by Decision No 1786/2002/EC.
PUBLIC PARTICIPATION CONCERNING PLANS, PROGRAMMES AND POLICIES
RELATING TO THE ENVIRONMENT
1. When preparing, modifying or reviewing a plan, programme or policy relating to the environment, Community institutions and bodies shall inform members of the public thereof, whether by public notice or by other appropriate means such as electronic media. That information shall include, where available, the draft proposal and the environmental information or assessment relevant to the plan, programme or policy which is being prepared, modified or reviewed.
2. The Community institution or body preparing, modifying or reviewing the plan, programme or policy relating to the environment shall inform members of the public about the practical arrangements for participation and, in particular, of the administrative entity of the Community institution or body from which the relevant information may be obtained and to which comments or questions may be submitted and of the timetable for transmission of comments
3. Community institutions and bodies shall provide for practical arrangements to enable members of the public to submit comments and opinions at an early stage before any decisions on the plan, programme or policy are made. Depending on the nature of the plan, programme or policy, members of the public shall be given the possibility to comment at the various stages of its preparation, modification or review.
Such practical arrangements shall include reasonable time-frames for the various stages, so that members of the public have sufficient time to be informed and to prepare and participate effectively in the environmental decision-making process. As a rule, where consultations on a plan, programme or policy relating to the environment are conducted in writing, there shall be a time-limit of eight weeks for receiving comments. Where meetings or hearings are organised, prior notice of at least eight 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, programme or policy
Results of public participation
In taking a decision on the plan, programme or policy relating to the environment, Community institutions and bodies shall take due account of the results of the public participation process.
Community institutions and bodies shall inform the public about that plan, programme or policy, including its text, and of the reasons and considerations upon which the decision is based, including information about the public participation process.
INTERNAL REVIEW AND ACCESS TO JUSTICE
Request for internal review of administrative acts
1. Any non-governmental organisation which meets the criteria set out in Article 13
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 the
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 eight weeks
after the administrative act was adopted, notified or published, whichever is the latest, or, in the case of an alleged omission, eight weeks
after the date when the administrative act was required. The request shall state the grounds for the review.
2. The Community institution or body referred to in paragraph 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 paragraph 2, it shall inform the non-governmental organisation 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.
In any event, the Community institution or body shall act within eighteen weeks from receipt of the request.
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 12
, provided that:
it is an independent, law-abiding,
non-profit-making legal person in accordance with a Member State's national law or practice;
it has the primary stated objective of promoting environmental protection in the context of environmental law and/or of promoting sustainable development
it has existed for more than two years and is actively pursuing the objective referred to under (b);
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.
Proceedings before the Court of Justice
1. The non-governmental organisation which made the request for internal review pursuant to Article 12
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 12
(2) or (3) the non-governmental organisation may institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty.
Where necessary, Community institutions and bodies shall adapt their rules of procedure to the provisions of this Regulation. These adaptations shall take effect from ...(9)
Entry into force
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.
of the European Parliament of 31 March 2004 (OJ C 103 E, 29.4.2004, p. 612
), Council Common Position of 18 July 2005
(OJ C 264 E, 25.10.2005, p. 18
) and Position of the European Parliament of 18 January 2006