EC Regulation on the Application of the Aarhus Convention
October 13, 2006
This article briefly summarises Regulation (EC) No 1367/2006 on the application of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters to European Union (EU) institutions.
Background
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 (the Aarhus Convention) came into force on 30 October 2001. The Aarhus Convention is an international agreement which establishes the principle that the public (individuals and their associations) should have certain rights in relation to the environment. All parties to the Convention, including the EU and its Member States, are required to adopt the necessary provisions to implement this principle.
The Convention provides for certain rights:
▪ Access to environmental information: Everyone has the right to receive environmental information held by public authorities. This can include information on the state of the environment on policies or measures taken, or on the state of human health and safety when affected by the state of the environment.
▪ Public participation in environmental decision-making: The affected public and environmental non-governmental organisations have the right to participate in environmental decision-making. They may comment on, for example, proposals for projects affecting the environment or plans and programmes relating to the environment. Public authorities must take these comments into due account in decision-making and provide information on the final decisions and the reasons for them.
▪ Access to justice: The public has the right to challenge public decisions that have been made without respecting the two aforementioned rights or environmental law in general.
EU Implementation
By signing the Aarhus Convention in 1998, the EU agreed to implement the Convention into EU law and has since undertaken the necessary steps to update existing legal provisions and introduce new measures to meet all the Convention’s requirements.
Two Directives, the first concerning access to environmental information (Directive 2003/4/EC) and the second concerning public participation in environmental decision-making (Directive 2003/35/EC), were adopted in 2003. EU Member States were required to introduce the provisions of these Directives into their national legal systems by 14 February and 25 June 2005 respectively.
This article, however, is about how the Aarhus Convention has been implemented in an area of law that falls outside the competence of the Member States, namely the law that governs the EU institutions. The Aarhus Convention has recently been implemented into EU law governing the EU institutions by Regulation (EC) No 1367/2006 (the Aarhus Regulation), which came into force on 28 September 2006. This Regulation builds on Regulation (EC) No 1049/2001 (the Access Regulation), which already deals with public access to European Parliament, European Council and European Commission documents generally, regardless of whether they relate to environmental matters.
Access to Environmental Information
What does it mean for the public to have “access to environmental information”?
All EU institutions including the Parliament, the Council, the Commission and all other bodies and agencies have a duty to share environmental information. The Aarhus Regulation outlines the manner in which they must do this:
▪ They must make environmental information available in forms that the public can access directly without having to make an application. This could be, for instance, by creating electronic databases that are easily accessible, such as websites with search aids.
▪ The Aarhus Regulation also obliges institutions to respond to requests for access to environmental information.
What is the procedure for requesting access to environmental information?
The procedure for requesting access to environmental information is the same as the procedure implemented under the Access Regulation. Any natural or legal person, including a non-governmental organisation, can submit a request for access to environmental information to an EU institution. The Aarhus Regulation adds the provision that there is no requirement for the person requesting access to state a reason for the request, and the EU institution must not discriminate based on citizenship, nationality or domicile.
In accordance with standard procedure under the Access Regulation, the EU institution is obliged to reply within 15 working days, although in certain cases this deadline can be extended by a further 15 working days, for instance, when large numbers of documents have been requested.
The Aarhus Regulation recognises that if the EU institution approached does not have the information itself, it should direct the applicant to the institution that has the information and either transfer the request or inform the applicant as to where to send it. The institution is not obliged to obtain information it does not hold.
The Access Regulation recognises specific cases where the EU institution may exceptionally refuse to release the information requested. For all practical purposes, these cases fall into two categories. The first category comprises cases where disclosure would undermine the protection of the commercial interests or intellectual property rights of another person unless there is an overriding public interest in disclosure. The innovation of the Aarhus Regulation is that, where environmental information is concerned, an overriding public interest in disclosure is deemed to exist.
The second category comprises cases where disclosure would undermine the protection of (i) the public interest in matters of public security, defence and military matters, international relations, or the financial monetary or economic policy of the EU or a Member State, or (ii) the privacy and integrity of the individual. In this category, the Aarhus Regulation requires that these restrictions must be interpreted in a restrictive way when the information requested relates to emissions into the environment.
The Aarhus Regulation recognises that the EU institution may also refuse access to environmental information where disclosure of the information would adversely affect the protection of the environment to which the information relates (for example where the information is about the breeding sites of rare species).
What is the definition of “environmental information”?
“Environmental information” encompasses information in any material form (including electronic data) that relates to the state of the environment. It also includes information regarding measures and policies likely to affect, or designed to protect, the environment as well as information on human health and safety when environmental elements may impact it. Biological diversity and its components, including genetically modified organisms, fall within the definition.
Public Participation in Environmental Decision-Making
What does public participation involve?
Where any EU institution or body prepares “plans and programmes” relating to the environment, the Aarhus Regulation requires that the institution enable the public to participate. “Plans and programmes” include those which have, or are likely to have, significant effects on the achievement of the objectives of EU environment policy as well as general environmental action programmes. The public will also be invited to participate in the early formulation of environment-related programmes.
Depending on the particular plan or programme, different members of the public will be affected. EU bodies must identify the relevant public (including non-governmental organisations) and enable it to actively participate in the decision-making process.
As a result, all EU bodies will have to meet common minimum requirements regarding public consultation when preparing plans and programmes relating to the environment. As indicated by the Aarhus Regulation, participation will be organised as follows:
▪ EU institutions are to provide timely and adequate information to the public about the decision through publication of notices in newspapers or via the internet.
▪ They must then provide effective opportunities for the public concerned to submit comments (a time limit of at least eight weeks shall be set for receiving comments).
▪ They must take due account of the comments and opinions received.
▪ Finally, they must inform the public of the decision taken and the underlying reasons, and particularly of the outcome and consideration of the public participation process.
Access to Justice
Refusal of access to environmental information
If access to environmental information is refused, the applicant may make a complaint to the Ombudsman and/or institute court proceedings against the EU institution in order to seek annulment of the refusal. This must be done in accordance with the relevant provisions of the EC Treaty, meaning that the applicant must have “standing”, ie, the contested decision must directly and individually concern the applicant. Judging by the established case law on the Access Regulation, any applicant who makes a bona fide request for access to environmental information will have standing to seek annulment of any refusal to grant access.
Refusal to allow a person to participate in the decision-making process
If an EU institution refuses to allow a person to participate in the decision-making process, it would seem, on general principles, that such person would also have standing to challenge such refusal before the European Court of First Instance. The Regulation confers a right on members of the public to take part in the decision-making process, and so any institution’s failure to respect that right would be of direct and individual concern to the person. However, challenging the refusal to be allowed to take part in the decision-making process is not the same as challenging a decision taken by an EU institution on an environmental matter. While such a decision is, in principle, open to challenge, it will be relatively difficult for a person to prove that a particular decision in environmental matters is of direct and individual concern.
Administrative and judicial review at the request of non-governmental organisations
The Aarhus Convention does not seek to overturn the rules of the contracting states on standing to bring legal proceedings, although it does declare that such rules should give the public concerned wide access to justice within the scope of the Convention. To this end, the Convention provides that the interest of certain non-government organisations (NGOs) that promote environmental protection should be sufficient to confer standing.
The Aarhus Regulation has given effect to these provisions in a specific manner. Where an NGO meets certain criteria, it is entitled to request an “internal review” of an EU institution’s decision within six weeks of that decision being made. The criteria require the following:
▪ The NGO is an independent non-profit-making legal person in accordance with a Member State’s national law or practice.
▪ The NGO’s primary stated objective is to promote environmental protection in the context of environmental law.
▪ The NGO has existed for more than two years and is actively pursuing the above objective.
▪ The subject matter of the request for internal review is covered by the NGO’s objective and activities.
The EU institution in question shall consider the request, unless it is clearly unsubstantiated, and state its reasons in a written reply within 12 weeks of receipt of the request. If the EU institution is unable to meet the deadline, it must inform the NGO as soon as possible; however, the institution must reply within 18 weeks of the receipt of the request.
The Aarhus Regulation states that an NGO which has made a request for internal review may institute proceedings before the European Court of First Instance “in accordance with the relevant provisions of the Treaty”. This does not confer on the NGO an automatic right to challenge the decision. The NGO must initially establish that it is “directly and individually” concerned within the meaning of Article 230 of the EC Treaty. The Court is likely to give heed to the words of the Convention, according to which standing should be determined according to the objective of giving the public wide access to justice within the scope of the Convention.
The Aarhus Regulation also states that if an EU institution fails to act, the NGO may institute proceedings before the European Court of First Instance “in accordance with the relevant provisions of the Treaty”. This is a reference to Article 232 of the Treaty whereby an individual may bring an action against an EU institution for failure to act (only if the individual has first summoned the institution to act) and the institution has not acted within two months of such summons. It appears that an NGO aggrieved by the failure of an EU institution to deliver the results of its internal review within the deadline would first have to summon that institution to act pursuant to Article 232 of the Treaty and wait two months before bringing the matter before the Court. Then the NGO would have the requisite standing to challenge the EU institution’s failure to act because the Regulation confers the right to a decision as to the outcome of the internal review. After obtaining the final decision, however, the NGO may then find it more difficult to establish sufficient standing to challenge the substance of the decision.
Issues Arising
The provisions of the Aarhus Regulation are highly innovative and, like many legislative innovations, they may well provoke conflicts.
The public should have wide access to information concerning the environment. On the other hand, this objective should not justify total disregard of the need to protect confidential business information and intellectual property. By placing the public interest above all other concerns where the information requested relates to emissions into the environment, the Aarhus Regulation runs the serious risk of unnecessarily endangering this confidential information.
In the best regulated societies, the elected representatives control and criticise general planning and strategy but do not become involved in day-to-day executive matters. Similarly, the Aarhus Convention gives members of the public wider participation in matters of general environmental planning and environmental strategy, but it does not to allow them to become over-involved in matters of an executive nature, such as product approvals. Such matters should be, and are, controlled by specific EU regulations to meet the requirements of the sector concerned.
The Aarhus Convention does not intend to revolutionise the systems of judicial remedies in the contracting states. In the same way, the Aarhus Regulation does not introduce new rights of recourse that the EC Treaty does not already grant. The Aarhus Regulation certainly protects the rights of an interested party or an NGO, but any challenge to the substance of a decision made by an EU institution in environmental matters still remains subject to the general requirement in the Treaty that the party bringing the challenge must show that it is directly and individually concerned by the contested decision.
