PURPOSE: to apply the provisions of the Aarhus Convention to Community institutions and Community bodies.

LEGISLATIVE ACT: Regulation 1367/2006/EC 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.

CONTENT: the Council agreed to adopt this Regulation following a meeting with the European Parliament in the Conciliation Committee. The Belgian delegation abstained.

The Regulation’s objective is to implement the provisions set out in the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, otherwise referred to as the Aarhus Convention, and to apply them specifically to Community institutions and bodies.

The EU institutions or bodies will apply the requirements of the Arhus Convention, by:

- guaranteeing the right of public access to environmental information received or produced and held by them;

- ensuring that environmental information is progressively made available and disseminated to the public in order to achieve its widest possible systematic availability and dissemination;

- taking account of public participation when deciding on a plan or programme relating to the environment and informing the public about it;

- granting access to justice in environmental matters at EU level under the conditions laid down by the Regulation;

- including information on steps taken in proceedings for infringement of Community law in databases or registers.

In applying the provisions of this Regulation, the Community institutions and bodies will provide guidance to the public on access to information, how they can participate in the decision-making process and how they can access justice on environmental matters.

When applying for access to environmental information held by the Community, the rules set out in Regulation 1049/2001/EC on public access to documents of the European Parliament, the Council and the Commission and all its exemptions, will apply. (For a summary of Regulation 1049/2001/EC refer to COD/2000/0032).

In other provisions, the Community institutions or bodies must organise environmental information in an electronic format – be it computer telecommunications or other electronic means. Information obtained by the Community before the Regulation enters into force need not be stored electronically. The Community, however, will be obliged to indicate where the information can be sourced from. Further, the Community is obliged to insure that any information compiled by them is up-to-date, accurate and comparable.

The Regulation, in follow-up to Council concerns, also lists a number of exemptions based on Regulation 1049/2001/EC. Exemptions include: emissions into the environment and the breeding sites of rare species. These exemption can not, however, be applied to investigations nor can they be applied to infringements of Community law. Refusing information must be done restrictively and must take account of the public interest served by disclosure.

On the matter of public participation, the Community must provide early and effective opportunities for the public to participate during the preparation, modification or review of plans or programmes relating to the environment. Non-governmental organisations will be allowed to seek internal reviews on administrative acts adopted under environmental law or in case of an alleged administrative omission. They will also be allowed to institute proceedings before the Court of Justice. Strict criteria are set out as to what constitutes a non-governmental organisation.

ENTRY INTO FORCE: 28 September 2006.

APPLICATION: 28 June 2007.

The European Parliament adopted a resolution approving the joint text agreed by the Conciliation Committee. (For a summary of the joint text, please see the document dated 02/05/2006.)

The Conciliation Committee reached agreement on a joint text for the proposed regulation on the application to the EU institutions of the provisions of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters. The main points of the agreement can be summarised as follows:

- access to information : the agreement reached is based on the regime of exceptions laid down in existing Regulation 1049/2001/EC on access to documents held by the EU institutions. These exceptions should apply "subject to any more specific provisions in [the proposed] Regulation concerning requests for environmental information". Where information collected before the entry into force of the proposed regulation is not available in electronic form, Community institutions and bodies shall as far as possible indicate where that information is located. Where the requested information is not held by an EU institution, the latter should inform the applicant or transfer the request "at the latest within 15 working days";

- public participation : one of the recitals notes that "the Aarhus Convention also requires that, to the extent appropriate, Parties shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment". Parliament accepted this compromise, although it had wanted the substantive part of the text to stipulate that public participation should be allowed with regard not only to plans and programmes but also to policies relating to the environment. It was also agreed that, when taking a decision on an environmental plan or programme, Community institutions and bodies shall take "due account" of the outcome of public participation and shall inform (and not just "make reasonable efforts to inform" as was previously proposed) the public about the decision, including the text of the plan or programme and the reasons and considerations upon which the decision is based;

- internal review and access to justice : the EP delegation succeeded in extending from 4 to 6 weeks the period during which NGOs may request the internal review of an administrative act concerning the environment;

- deadline for application : lastly, following pressure from Parliament, the new regulation shall apply nine months after its entry into force, whereas no date had been proposed originally. Community institutions and bodies will be required to adapt their internal rules to the provisions of the new regulation by that date.

The Council decided not to approve the European Parliament's second reading amendments to a proposal for a Regulation on the application of the provisions of the Arhus Convention on access to information, on public participation in decision-making and on access to justice in environmental matters to EC institutions and bodies.

The Council accordingly decided to convene the Parliament-Council conciliation committee with a view to negotiating a joint text.

The Commission accepted or accepted in part or in principle the amendments which:

- stipulate a delay of 15 working days at most for replying to the applicant when information is not held by a Community institution or body;

- take up “promoting sustainable development” among the finalities of Community legislation in the field of the environment;

- extends the time-limit for receiving comments in written consultations from 4 to 8 weeks is acceptable, as being in line with the present Commission consultation practice. For the organisation of meetings however, a prior notice of 8 weeks, instead of 4, does not appear necessary, and might even be counterproductive in cases where the organisation of an additional consultation meeting is beneficial. Hence, this part can hence not be accepted;

- relate to the “results of public participation” can be accepted in part and in principle. The inclusion of “policy” is not acceptable. The requirement to take due account of the outcome of public participation was reflected in the Commission’s original proposal and comes from the Aarhus Convention (Article 7 with Article 6(8)). The requirement to inform about the plans and programmes adopted and the underlying considerations is inspired by Article 6(9) of the Convention. Furthermore, to give feed-back on the consultation corresponds to Commission consultation standards and can hence be accepted in principle. The wording should, however be adapted to reflect the Aarhus wording and to be coherent with the remainder of the Article;

- concern the timing for adaptations of rules of procedures and date of application can be accepted in principle by the Commission. The Commission accepts to set an end-date for those events, from entry into force, which is not contained in the common position. However, the delay given by the EP amendments is too short to allow for the necessary thorough adaptation of administrative procedures and rules of all Community institutions and bodies. In addition, the date for taking effect of adaptations of the rules of procedure should be the same as the date for application of the Regulation.

As regards the amendments rejected by the Commission, they concern the following:

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

- the definition of ‘plans and programmes relating to the environment’;

- applying the regime of exceptions of Directive 2003/4 on access to environmental information to requests for access to environmental information from Community institutions. The common position builds upon Regulation 1049/2001/EC on access to documents, which is extended to all Community institutions and bodies. Applying Directive 2003/4 for exceptions would lead to two different, in part overlapping, regimes regarding access to documents in general and to environmental information in particular. This would, in practice, result in a non-transparent system;

- extending the public participation requirements to the preparation of “policies”;

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

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

- an obligation to inform the public of the location of all information that is not electronically available, and how it can be obtained;

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

- the introduction of a new Article enabling Community institutions and bodies not covered by Regulation 1049/2001/EC to make a “reasonable charge” for supplying information;

- extending the delay for a request for internal review of an administrative act from 4 weeks following adoption to 8 weeks;

- the addition of a requirement for NGOs to be admitted to internal review, to be law-abiding;

- aiming to add to the NGOs that can request administrative review, next to those having the primary objective of promoting environmental protection, also those “promoting sustainable development.” This criterion is potentially very wide, and it will be difficult to delimit the organisations covered.

The European Parliament adopted a resolution drafted by Eija-Riitta KORHOLA (EPP-ED, FI) and made some amendments to the common position:

- "promoting sustainable development" should be included in the scope of the European environment policy subject to the new Regulation;

- the definition of 'environmental information' should be extended to include "the state of progress of proceedings for infringement of Community law";

- exceptions on granting access to environmental information should be governed not by Regulation 1049/2001 but by Directive 2003/4/EC on public access to environmental information;

- public participation should be allowed with regard not only to plans and programmes but also to policies relating to the environment;

- the scope of the regulation should be extended to cover plans and programmes subject to funding by the EU (and not just those which are prepared or adopted by a Community institution or body);

- banking activities, which had been excluded by the Council, should be included in the scope of the regulation;

- where the requested environmental information is not held by an EU institution the latter should inform the applicant or transfer the request "at the latest within 15 working days";

- the provisions on charges should be aligned with Directive 2003/4/EC, i.e. institutions or bodies other than the Parliament, Council or Commission may levy "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;

- on the results of public participation, a new clause states that 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. They must 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;

- the time-limits for receiving comments or organising meetings to enable the public to participate in the environmental decision-making process should be extended from 4 weeks to 8 weeks;

- the time-limit for submission of a request for internal review by an NGO which meets the criteria set out in Article 11 should be 8 weeks after the date when the act was due to be adopted, rather than 4 weeks as suggested by Council;

- Parliament added the words “law-abiding” to the phrase “independent non-profit-making legal person in accordance with a Member State's national law or practice” for NGOs meeting the relevant criteria; the primary objective of such NGOs may be or include promoting sustainable development;

- Community institutions and bodies should adapt their rules of procedure with effect from the entry into force of the Regulation;

- the regulation should apply from 3 months after the entry into force of the regulation.

The committee adopted the report by Eija-Riitta KORHOLA (EPP-ED, FI) amending the Council's common position under the 2nd reading of the codecision procedure. It reinstated, wholly or in part, a number of amendments adopted by Parliament at 1st reading:

- "promoting sustainable development" should be included in the scope of the European environment policy subject to the new Regulation;

- the definition of 'environmental information' should be extended to include "the state of progress of proceedings for infringement of Community law";

- public participation should be allowed with regard not only to plans and programmes but also to policies relating to the environment;

- the scope of the regulation should be extended to cover plans and programmes subject to funding by the EU (and not just those which are prepared or adopted by a Community institution or body);

- where information relating to acts adopted before the regulation's entry into force is not available in electronic form, it should be clearly stated where and how that information can be found;

- exceptions on granting access to environmental information should be governed not by Regulation 1049/2001 but by Directive 2003/4/EC on public access to environmental information;

- where the requested environmental information is not held by an EU institution the latter should inform the applicant or transfer the request "at the latest within 15 working days";

- the provisions on charges should be aligned with Directive 2003/4/EC, i.e. institutions or bodies other than the EP, Council or Commission may levy "a reasonable charge" for supplying information;

- Community institutions and bodies shall take "due account" of the results of the public participation process and shall give information about that process;

- Community institutions and bodies should adapt their rules of procedure with effect from the entry into force of the Regulation.

The committee also adopted a number of new amendments aimed at modifying some of the provisions of the common position:

- banking activities, which had been specifically excluded by the Council, should be included in the scope of the regulation;

- the time-limits for receiving comments or organising meetings to enable the public to participate in the environmental decision-making process should be extended from 4 weeks to 8 weeks;

- the time-limit for submission of a request for internal review by an NGO which meets the criteria set out in Article 11 should be 8 weeks after the date when the act was due to be adopted, rather than 4 weeks as suggested by Council;

- the regulation should apply from 3 months after its publication in the Official Journal. The committee felt that it was important that it be applied as quickly as possible, whereas the Council had not set a date.

The changes introduced by the Council help to clarify the proposal in the light of the provisions of the Aarhus Convention, in particular in relation to access to environmental information. They are also more specific in relation to public participation, while leaving the necessary flexibility to the institutions and bodies concerned to provide for the procedural arrangements and details through practical and/or other provisions. While the criteria and procedure for entitlement of non-governmental organisations to make a request for internal review have been simplified, the Commission is satisfied that they maintain crucial elements for qualifying that such organisation’s primary objective must be the promotion of environmental protection in the context of Community environment policy. The Commission therefore supports the common position.

The common position incorporates a number of the European Parliament's first-reading amendments, either verbatim, in part or in spirit. In particular, procedural requirements which Community institutions and bodies have to meet with regard to information of the public and public participation in decision-making have been clarified and enhanced. With regard to access to justice, criteria for entitlement to make a request for internal review have been simplified. Qualified entities (now defined as NGOs meeting the relevant criteria) are no longer required to be active at Community level as such, yet any requests have to address Community level issues, i.e. be consistent with the definition of environmental law as it appears in Article 2 (f). Furthermore, as compared to the Commission proposal, the common position no longer requires the non-governmental organisation to “have its annual statement of accounts certified by a registered auditor.”

However, other amendments are not reflected in the common position because the Council agreed that they were unnecessary and/or undesirable or because provisions from the original Commission proposal were deleted or thoroughly redrafted.

The common position also includes changes other than those envisaged in the European Parliament's first-reading opinion. In addition, a number of drafting changes have been introduced to clarify the text or to ensure the overall coherence of the Directive.

In particular:

-the Council accepted the introduction of the concept in the Aarhus Convention, according to which administrations should assist the public regarding access to information, participation in decision-making and access to justice in environmental matters;

-the Council accepted that the time limit for making a request for internal review starts to run “after the administrative act was adopted, notified or published, whichever is the latest”.

-the Council has added, in a new Article 6, provisions concerning the “application of exceptions concerning requests for access to environmental information”. While following the basic approach to extend Regulation 1049/2001 on access to documents to all Community institutions and bodies, the Council found that some provisions of that Regulation concerning exceptions would need to be qualified for requests for environmental information, in order to ensure full compliance with the Aarhus Convention. These are added in a new Article;

-amendments referring to sustainable development were not acceptable because sustainable development is outside the scope of the Convention and not in line with Article 174 of the EC Treaty with regard to the objectives of environmental policy;

-the notion of “qualified entity” is deleted from the text;

-the Council did not accept the amendment aiming to exclude organisations “that may not have genuine environmental protection objectives”;

-the amendment concerning the need for Community institutions ”to streamline procedures” is not linked to a specific operational provision and not incorporated;

-the amendment aiming to include in the definition of “environmental information” information on the state of infringement proceedings, was rejected;

-new clauses relating to the scope of the public participation provisions – extension to ‘policies relating to the environment’ and inclusion of plans and programmes ‘subject to funding by a Community institution or body’ - were rejected as they go beyond the legally binding requirements of the Aarhus Convention and are not in line with the approach followed for the Member States;

-certain amendments relating to requests for review by individual members of the public were rejected. The Aarhus Convention provides for the possibility for Parties to establish criteria as concerns access to justice, which the Commission proposal has made use of concerning the criteria for non-governmental organisations (“qualified entities”). While the criteria for entitlement to make a request for internal review have been simplified in the common position, the latter carefully adheres to the provisions of Articles 230(4) and 232(3) of the EC Treaty.

The common position incorporates a number of the European Parliament's first-reading amendments, either verbatim, in part or in spirit. In particular, procedural requirements which Community institutions and bodies have to meet with regard to information of the public and public participation in decision-making have been clarified and enhanced. With regard to access to justice, criteria for entitlement to make a request for internal review have been simplified. Qualified entities (now defined as NGOs meeting the relevant criteria) are no longer required to be active at Community level as such, yet any requests have to address Community level issues, i.e. be consistent with the definition of environmental law as it appears in Article 2 (f). Furthermore, as compared to the Commission proposal, the common position no longer requires the non-governmental organisation to “have its annual statement of accounts certified by a registered auditor.”

However, other amendments are not reflected in the common position because the Council agreed that they were unnecessary and/or undesirable or because provisions from the original Commission proposal were deleted or thoroughly redrafted.

The common position also includes changes other than those envisaged in the European Parliament's first-reading opinion. In addition, a number of drafting changes have been introduced to clarify the text or to ensure the overall coherence of the Directive.

In particular:

-the Council accepted the introduction of the concept in the Aarhus Convention, according to which administrations should assist the public regarding access to information, participation in decision-making and access to justice in environmental matters;

-the Council accepted that the time limit for making a request for internal review starts to run “after the administrative act was adopted, notified or published, whichever is the latest”.

-the Council has added, in a new Article 6, provisions concerning the “application of exceptions concerning requests for access to environmental information”. While following the basic approach to extend Regulation 1049/2001 on access to documents to all Community institutions and bodies, the Council found that some provisions of that Regulation concerning exceptions would need to be qualified for requests for environmental information, in order to ensure full compliance with the Aarhus Convention. These are added in a new Article;

-amendments referring to sustainable development were not acceptable because sustainable development is outside the scope of the Convention and not in line with Article 174 of the EC Treaty with regard to the objectives of environmental policy;

-the notion of “qualified entity” is deleted from the text;

-the Council did not accept the amendment aiming to exclude organisations “that may not have genuine environmental protection objectives”;

-the amendment concerning the need for Community institutions ”to streamline procedures” is not linked to a specific operational provision and not incorporated;

-the amendment aiming to include in the definition of “environmental information” information on the state of infringement proceedings, was rejected;

-new clauses relating to the scope of the public participation provisions – extension to ‘policies relating to the environment’ and inclusion of plans and programmes ‘subject to funding by a Community institution or body’ - were rejected as they go beyond the legally binding requirements of the Aarhus Convention and are not in line with the approach followed for the Member States;

-certain amendments relating to requests for review by individual members of the public were rejected. The Aarhus Convention provides for the possibility for Parties to establish criteria as concerns access to justice, which the Commission proposal has made use of concerning the criteria for non-governmental organisations (“qualified entities”). While the criteria for entitlement to make a request for internal review have been simplified in the common position, the latter carefully adheres to the provisions of Articles 230(4) and 232(3) of the EC Treaty.