Access to information, public participation and access to justice in environmental matters at Community level A Practical Guide

Transcription

1 Access to information, public participation and access to justice in environmental matters at Community level A Practical Guide Access to information, public participation in decision-making and access to justice in environmental matters is governed at international level by the so-called Aarhus Convention, signed in Aarhus (Denmark) in This Convention binds Community institutions and bodies and has been implemented by means of Regulation (EC) No 1367/2006, which is also known as 'the Aarhus Regulation'. The Aarhus Regulation has itself been implemented by means of two Commission Decisions 2008/50/EC and 2008/401/EC, Euratom. The Aarhus Regulation grants the public rights and imposes obligations on Community institutions and bodies regarding access to environmental information (Section I), public participation concerning plans and programmes relating to the environment (section II) and access to review procedures (Section III). This guide is intended to assist members of the public in availing themselves of their rights under the Aarhus Regulation. It aims thereby to contribute to a more transparent and accountable functioning of the European Community. Even though the Aarhus Regulation applies to all Community institutions and bodies concerned, this Guide will, for practical reasons, focus primarily on the implementation and application of that Regulation by the European Commission. This guide has no binding effect. It is intended to provide a summary of the rules set out in the Aarhus Regulation and illustrate them. For the exact details of the principles, conditions and modalities of these rules, one should refer to the texts published in the Official Journal.

2 CONTENTS I. Access to environmental information How to have access to environmental information? What information can I ask for? Who can ask for environmental information? Whom can I ask the information from? How should a request for access be presented and how will the Commission handle it? 4 6. What if the Commission does not have the information? Can access to documents containing environmental information be refused? What can I do if my request for access is turned down or if the Commission has not replied within the time allowed?... 5 II. Public participation In which cases must public participation take place? What is a plan or programme relating to the environment? What are the objectives of Community environmental policy? What is not a plan or programme relating to the environment? Who is consulted? How does it work in practice? How much time is given to the public to comment and express its views? What will the Commission do with the comments of the public? How will the public be informed of the outcome of the public consultation?... 7 III. Access to review procedure What is internal review? Who can request an internal review? Which supporting document must accompany a request for internal review? What if the required documentation has not been supplied, is incomplete or lacks clarity?8 22. How to submit a request for internal review? What if the Commission is not the right body to which submit a request? When should a request for internal review be submitted? When will the applicant NGO receive a reply? What will the Commission reply if the NGO is not allowed to submit a request for internal review? What will the Commission reply once it has assessed whether the request for internal review is justified or not? What happens if the request for internal review is refused? What if the Commission does not reply to the request within 18 weeks at the latest of its lodging? Contact point... 11

3 I. Access to environmental information 1. How to have access to environmental information? A wealth of environmental information is directly accessible by the public through public telecommunications networks. If not, members of the public can submit requests to have access to not previously published information. Examples of information directly accessible by members of the public are Community legislation, policy-related documents, plans and programmes relating to the environment, progress reports on the implementation of those items and, more generally, reports on the state of the environment which are available either through databases, such as Eur-Lex ( and Pre-Lex ( or the Europa portal ( 2. What information can I ask for? Environmental information covers any available information, in any form or format, on the environment itself, its elements (air, water, soil, land, landscape and natural sites, marine areas, etc.) and its various components, as well as information concerning factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases, affecting or likely to affect the environment. Environmental information also includes measures, such as policies, legislation, plans, programmes, and activities affecting or likely to affect the environment as well as measures or activities designed to protect it; cost-benefit and other economic analyses used to prepare those measures and activities are covered as well. Information on the state of human health and safety, conditions of human life, cultural sites and built structures, when influencing or influenced by the environment, and reports on the implementation of environmental legislation also constitute environmental information. 3. Who can ask for environmental information? Anyone, regardless of their personal or professional situation, may ask to have access to environmental information, without having to state an interest or give a reason. The person making the request does not have to be an EU citizen or resident. NGOs can request information regardless of where they are legally registered. 4. Whom can I ask the information from? Access to environmental information received or produced and held by Community institutions or bodies may be requested, except when the information is used by the institution or body concerned acting in a judicial capacity. This covers environmental information held, for instance, by the European Parliament, the Council of the European Union, the European Commission, the European Economic and Social Committee, the Committee of the Regions, the European Investment Bank and Community agencies.

4 5. How should a request for access be presented and how will the Commission handle it? The right of access to environmental information held by the European Commission is to be exercised through the procedures set in place to allow members of the public to have access to documents under Regulation (EC) No 1049/ The request must be made in writing. It may be sent by post, fax or . To guide you in your search, a document register has been established on the EUROPA server ( An access request form is also available on the EUROPA server ( The Commission has published a citizens' guide to Regulation No 1049/2001, to which members of the public wishing to request access to environmental information are referred to as the rules provided for by that Regulation also apply to requests for access to environmental information, subject to what is explained in Questions 7 and 8 below. 6. What if the Commission does not have the information? If the Commission does not hold the requested environmental information, it will, as promptly as possible, but within 15 working days at the latest, inform the applicant of the Community institution or body or the relevant public authority of the Member which it believes holds the information. Alternatively, the Commission can transfer the request to that institution or body or the public authority and inform the applicant of that transfer. 7. Can access to documents containing environmental information be refused? Yes. Although all Commission documents are in principle publicly accessible, there are however some which may need to be withheld in order to protect public or private interests or to ensure that the Commission's work is not disrupted. Refusal to grant access must be based on one of the exceptions provided for in Article 4 of Regulation (EC) No 1049/2001 (see the relevant part of the citizens' guide to Regulation No 1049/2001) and must be justified on the grounds that disclosure of the document would be harmful. The grounds for refusal must be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment. It is to be noted that, in addition to the exceptions provided for in Article 4 of Regulation (EC) No 1049/2001, another exception specifically applies as far as access to environmental information is concerned: access to such information may be refused where disclosure of such information would adversely affect the protection of the environment to which the information relates, such as the breeding sites of rare species. 1 OJ L 124, , p. 1.

5 If only parts of the document are covered by any of these exceptions, the remaining parts of the document must be released. 8. What can I do if my request for access is turned down or if the Commission has not replied within the time allowed? The review procedure provided for by Regulation No 1049/2001 applies (see the relevant part of the citizens' guide to Regulation No 1049/2001). II. Public participation 9. In which cases must public participation take place? The Commission must give the public early and effective opportunities to participate, when all options are still open, during the preparation, modification or review of plans or programmes relating to the environment. 10. What is a plan or programme relating to the environment? A plan or programme, which is prepared or adopted by the Commission, relates to the environment when it meets the following two conditions: the Commission is required to prepare such a plan or programme by existing rules, and the plan or programme contributes to achieving the objectives of Community environmental policy or is likely to have significant effects on the achievement of those objectives. General environmental action programmes are, for example, plans and programmes relating to the environment. 11. What are the objectives of Community environmental policy? The main objectives of Community environmental policy are: 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 regional or worldwide environmental problems. These objectives are detailed in general environmental action programmes adopted by the Community. The Sixth Community Environment Action Programme (Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002, OJ L 242, p. 1) is the current one (the programme runs from 2002 to 2012). 12. What is not a plan or programme relating to the environment?

6 Certain documents, even though called plans or programmes, are not plans or programmes relating to the environment subject to public participation. Those documents are 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, or civil protection emergency plans and programmes. 13. Who is consulted? The Commission will consult the public affected or likely to be affected by, or having an interest in, the plan or programme relating to the environment which is being prepared. 14. How does it work in practice? Public consultations may take a variety of forms depending on the nature and content of the plan and programme concerned (meetings, hearings, Internet-based questionnaires and consultation, etc.). In many cases, public consultations will be carried out using 'Your Voice in Europe' ( which is the European Commission's 'single access point' to a wide variety of consultations. The draft plan or programme and supporting material, such as the environmental information or assessment relevant to the plan or programme under preparation, where available, will be made publicly available. When considering the detail of each public consultation, the Commission will use the General principles and minimum standards for consultation of interested parties by the Commission it has defined in its Communication COM (2002) 704 final ( 15. How much time is given to the public to comment and express its views? A time limit of at least eight weeks will in principle be set for receiving comments in case of Internet-based consultations. Where meetings or hearings are organised, prior notice of at least four weeks will in principle be given. Time limits may be shortened in urgent cases or where the public has already had the opportunity to comment on the draft plan or programme. 16. What will the Commission do with the comments of the public? The Commission must take due account of the outcome of the public participation. This means that the Commission will duly consider the comments submitted by the public and weigh them in the light of the various public interests in issue; this process can lead to

7 adapting the plan or programme. There is no obligation, however, to incorporate literally in the draft plan or programme all the comments expressed. 17. How will the public be informed of the outcome of the public consultation? The Commission will inform the public of the plan or programme adopted and make its text publicly available; it will also give information on the public participation process and the reasons and considerations which led it to adopt the plan or programme as it is. Explanatory memoranda accompanying legislative proposals by the Commission (as and when the plan or programme concerned is to be adopted by the Council and/or the European Parliament) will include the results of these consultations and an explanation as to how these were conducted and how the results were taken into account in the proposal. This information as well as the contributions to open public consultations should also be made available on 'Your Voice in Europe' (see above). III. Access to review procedure 18. What is internal review? Certain non-governmental organisations promoting environmental protection can request the Commission to consider whether an administrative act it has adopted is not contrary to Community law relating to the environment; the Commission can also be asked to consider whether it should not have adopted an act, the lack of action constituting an administrative omission. An 'administrative act' is any measure of individual scope adopted under environmental law and having legally binding and external effects. This excludes measures without external legally binding effects, such as internal instructions and guidelines, and normative acts of general scope, such as regulations and directives. It covers decisions having legally binding and external effects, irrespective of their form, including those in the form of a letter. The Commission usually announces its decisions on its website ( by means of notices or press releases, or insertion of the newly adopted act in its register of documents. An 'administrative omission' is any failure of a Community institution or body to adopt an administrative act. 'Environmental law' means Community legislation which, irrespective of its legal basis, contributes to the pursuit of the objectives of Community policy on the environment (see the answer to Question 11 above). 19. Who can request an internal review? Unlike access to environmental information and public participation, which concerns both individuals and associations, only non-governmental organisations (NGOs) promoting the

8 protection of the environment can submit a request for internal review. To do so, the NGO must fulfil the following conditions: (a) it is an independent, non-profit making, legal person in accordance with a Member State s national law or practice; (b) it has the primary stated objective of promoting environmental protection in the context of environmental law; (c) it has existed for more than two years and is actively pursuing environmental protection; (d) the subject matter of the request for internal review is covered by its objective and activities. 20. Which supporting document must accompany a request for internal review? Any NGO which submits a request for internal review must supply the following documents: 1. Statute or by-laws of the NGO, or any other document fulfilling the same role under national practice for those whose national law does not require or provide for a NGO to adopt statute or by-laws. 2. Annual activity reports of the NGO of the last two years. 3. A copy of the legal registration with the national authorities (public registry, official publication, or any other relevant document) for NGOs established in countries where the fulfilment of such procedures is a pre-requisite for a NGO to obtain legal personality,. 4. Where relevant, documentation that the NGO has previously been acknowledged by a Community institution or body as being entitled to make a request for internal review. If a document cannot be submitted for reasons beyond the control of the NGO or is not clear enough to show that the NGO is independent and non-profit making or is actively working in the area which is subject to its request for internal review, equivalent documentation must be provided. (For instance, the NGO can submit a declaration signed by someone who can represent it declaring that the NGO is independent and non-profit making.) 21. What if the required documentation has not been supplied, is incomplete or lacks clarity? On the basis of the information provided with the request, the Commission will check whether the applicant NGO meets all the criteria mentioned above. It can request additional documentation or information to be provided by the NGO within a reasonable period which has to be specified in the request. During that period, the time limits of 12 to 18 weeks, within which the handling of the request is to be completed, are suspended. The Commission can

9 also consult the national authorities of the NGO s country of registration or origin to verify and assess the information provided by that organisation. 22. How to submit a request for internal review? Requests for internal review of an administrative act or relating to an administrative omission should be sent by mail, fax or to the Commission department (Directorate-General or Service) responsible for the application of the provision on the basis of which the administrative act was adopted, or in respect of which the administrative omission is alleged. For those acts or omissions falling under the responsibility of the Environment Directorate- General ( DG Environment ) of the Commission, the relevant contact details (which may be updated from time to time) can be found on the Commission's website dedicated to the Aarhus Convention ( The following mailbox may, in any case, be used: ENV-INTERNAL-REVIEW@ec.europa.eu. If the applicant NGO does not know which Commission department is responsible for investigating its request or is not aware of any specific contact details, the request can be sent to DG Environment, which will then forward the request to the responsible department. As soon as the request for internal review is registered, an acknowledgement of receipt shall be sent to the applicant NGO, where appropriate by electronic means 23. What if the Commission is not the right body to which submit a request? If the Commission receives a request for internal review concerning an act or omission for which another Community institution or body is responsible, it will, as promptly as possible and within 15 working days at the latest, pursuant to the Code of Good Administrative Behaviour ( inform the applicant NGO of the Community institution or body with which it believes the request should be lodged or transfer the request to the relevant Community institution or body and inform the applicant accordingly. 24. When should a request for internal review be submitted? Any request must be lodged with the Commission within six weeks after the administrative act was adopted, notified or published, whichever is the latest, or, in the case of an alleged omission, six weeks after the date when the administrative act should have been adopted. 25. When will the applicant NGO receive a reply? The Commission will consider any request for internal review from an NGO unless (i) it is clearly unsubstantiated or (ii) the applicant NGO is not eligible as it does not meet one or several of the conditions listed in the answer to Question 19 above; it must state its reasons in

10 a written reply to the NGO as soon as possible, and no later than 12 weeks after receipt of the request. This time-scale may however be extended to 18 weeks maximum from receipt of the request. The NGO will be informed in writing of that extension. 26. What will the Commission reply if the NGO is not allowed to submit a request for internal review? When the Commission considers that the request is inadmissible in full or in part, the applicant NGO will be informed in writing by the Director-General or head of department of the Commission s department which investigated the request. The Commission has delegated to the Director-General or head of department concerned the powers to address issues of admissibility and reply to the applicant NGO on behalf of the Commission. The Commission s reply must state the reasons why the request is considered to be inadmissible. It will be sent by electronic means, where possible. A request can be inadmissible, in particular, for one or several of the following reasons: 1. The applicant NGO is not entitled to make such a request, that is, it does not meet one or several of the conditions listed in the answer to Question 19 above, or it failed to submit the appropriate evidence showing that it meets all those criteria. 2. The request concerns an act or omission, which does not qualify as an 'administrative act' or 'administrative omission' within the specific meaning explained in the answer to Question 18 above. 3. The request was lodged with the Commission more than 6 weeks after the administrative act was adopted, notified or published, whichever is the latest, or, in the case of an alleged omission, six weeks after the date when the administrative act was required. 4. The request does not set out the grounds on which it is made, or does not substantiate them in a sufficient manner, either by failing to explain the reasons why the applicant NGO considers that the Commission has acted unlawfully or by failing to provide all the relevant information and material supporting the contentions made in the request. The Commission s reply declaring a request inadmissible must be sent within 12 weeks of lodging the request, unless the Commission extends the time-frame up to 18 weeks. It will mention the remedies open to the NGO, namely instituting court proceedings against the Commission, or making a complaint to the Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively. 27. What will the Commission reply once it has assessed whether the request for internal review is justified or not? The Commission will consider whether the administrative act concerned has been adopted in breach of environmental law, or whether it has omitted to adopt an administrative act although it was legally obliged to have done so. Where there is a breach of environmental law, the

11 request is to be considered as well founded; where no such breach exists, the request will be rejected. The Commission has empowered its Members to decide that the administrative act whose review is sought, or the alleged administrative omission, is not in breach of environmental law. This means that the reply informing the applicant NGO that its request is rejected will be adopted by the relevant Member of the Commission on behalf of the Commission. Any decision whereby the Commission acknowledges that there has been a breach of environmental law will be taken by the Commission itself (that is, the College of Commissioners). 28. What happens if the request for internal review is refused? The reply informing the NGO that the act or alleged omission referred to in its request is not in breach of environmental law must state the reasons for the decision and mention the remedies open to the NGO, namely instituting court proceedings against the Commission, or making a complaint to the Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively. 29. What if the Commission does not reply to the request within 18 weeks at the latest of its lodging? In such a case, the applicant NGO wishing to pursue the matter further may institute proceedings under Article 232 EC of the EC Treaty. Alternatively, it can make a complaint to the Ombudsman, under the conditions laid down in Article 195 of the EC Treaty. 30. Contact point Enquiries and questions may be sent to the following address: ENV-AARHUS@ec.europa.eu. * * * APPLICABLE LEGAL PROVISIONS Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 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 (OJ L 264, , p. 13).

12 Commission Decision 2008/50/EC of 13 December 2007 laying down detailed rules for the application of Regulation (EC) No 1367/2006 of the European Parliament and of the Council on the Aarhus Convention as regards requests for the internal review of administrative acts (OJ L 13, , p. 24). Commission Decision 2008/401/EC, Euratom of 30 April 2008 amending its Rules of Procedure as regards detailed rules for the application of Regulation (EC) No 1367/2006 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 institution and bodies (OJ L 140, , p. 22).