Access to information, public participation and access to justice in environmental matters (Aarhus Convention)

KEY POINTS

The convention, in force since 30 October 2001, is based on the premise that greater public awareness of and involvement in environmental matters will improve environmental protection. It is designed to help protect the right of every person of present and future generations to live in an environment adequate to their health and well-being. To this end, the convention provides for action in 3 areas:

• ensuring public access to environmental information held by the public authorities;
• fostering public participation in decision-making which affects the environment;
• extending the conditions of access to justice in environmental matters.

The EU institutions are covered by the definition of a public authority within the meaning of the convention, on the same footing as national or local authorities.

The parties who have signed the convention agree to apply the listed rights and obligations:

• to take the necessary legislative, regulatory and other measures;
• to enable public officials and authorities to help and advise the public on access to information, participation in decision-making and access to justice;
• to promote environmental education and environmental awareness among the public;
• to provide for recognition of and support to associations, organisations or groups promoting environmental protection.

Public access to environmental information

The convention lays down precise rights and duties regarding access to environmental information, including deadlines for providing information and the grounds on which public authorities may refuse access to certain types of information.

Access may be refused in 3 cases:

• the public authority does not hold the requested information;
• the request is manifestly unreasonable or formulated in too general a manner;
• the request concerns material in the course of completion.

Requests may also be refused on grounds of confidentiality of the proceedings of public authorities, national defence and public security, to further the course of justice or to respect the confidentiality of:

• commercial and industrial information;
• intellectual property rights;
• personal data; and
• the interests of a third party who has disclosed the information.

Because the disclosure of information may serve the public interest, all these grounds for refusal must be interpreted in a restrictive way.

A decision to refuse access must state the reasons for the refusal and indicate what forms of appeal are open to the applicant.

Public authorities must keep the information they hold up to date, and to this end establish publicly accessible lists, registers and files. In this regard, these bodies are encouraged to progressively make use of electronic databases containing reports on the state of the environment, legislation, national plans and policies and international conventions.

In 2003, EU countries adopted Directive 2003/4/EC on public access to environmental information. They had to incorporate it into national law by 14 February 2005.

In 2006, the EU adopted Regulation (EC) No 1367/2006 which requires the EU’s institutions and bodies to implement the obligations contained in the Aarhus Convention.

Public participation in environmental decision-making

The second part of the convention concerns public participation in decision-making. This must be ensured through the authorisation procedure for certain specific activities (mainly of an industrial nature) listed in Annex I to the convention. The final decision to authorise the activity must take due account of the outcome of the public participation.

The public must be informed, early in the decision-making procedure, of the following:

• the matter on which the decision is to be taken;
• the nature of the decision;
• the authority responsible;
• the procedure to be used, including the practical details of the consultation procedure;
• the procedure for an environmental impact assessment (if any).

The procedural timeframes must allow for genuine public participation.

A streamlined procedure has been set up for the formulation of environmental plans and programmes.

The convention also invites its signatories to promote public participation in the preparation of environmental policies as well as standards and legislation that may have a significant effect on the environment.

In 2003, EU countries adopted Directive 2003/35/EC on public access to environmental information.

In 2006, Council Decision 2006/957/EC took account of an amendment of the convention which increases public participation in decisions concerning the deliberate release of GMOs into the environment. At EU level, this requirement is already met by certain articles of Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms and Regulation (EC) No 1829/2003 on genetically modified food and feed.

Several other of the EU’s environmental directives contain rules on public participation in environmental decision-making. These include Directive 2001/42/EC and the Water Framework Directive (Directive 2000/60/EC).

Access to justice in environmental matters

All persons who feel their rights to access to information have been impaired (e.g. a request for information ignored, wrongfully refused or inadequately answered) must have access, in the appropriate circumstances, to a review procedure under national legislation.

Access to justice is also ensured in the event of the convention’s participation procedure being infringed. Access to justice is also allowed for the settlement of disputes relating to acts or omissions by private persons and public authorities which contravene national rules relating to the environment.

Directives 2003/4/EC and 2003/35/EC each contain provisions on access to justice. A 2003 proposal for a directive on access to environmental justice was withdrawn in 2014 as part of a European Commission fitness check of EU law (known as REFIT).

In April 2017, the Commission adopted a guidance document on access to justice in environmental matters. This clarifies how individuals and associations can challenge decisions, acts and omissions by public authorities related to EU environmental law before national courts.