52002AG0024

COMMON POSITION (EC) No 24/2002

adopted by the Council on 28 January 2002

with a view to adopting Directive 2002/.../EC of the European Parliament and of the Council of ... on public access to environmental information and repealing Council Directive 90/313/EEC

(2002/C 113 E/01)

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(1),

Having regard to the opinion of the Economic and Social Committee(2),

Having regard to the opinion of the Committee of the Regions(3),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(4),

Whereas:

(1) Increased public access to environmental information and the dissemination of such information contributes to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.

(2) Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment(5) initiated a process of openness in relation to public access to environmental information which should be fostered and continued.

(3) Article 8 of that Directive requires Member States to report to the Commission on the experience gained, in the light of which the Commission is required to make a report to the European Parliament and the Council together with any proposal for revision of the Directive which it may consider appropriate.

(4) The report produced under Article 8 of that Directive identifies concrete problems encountered in the practical application of the Directive.

(5) On 25 June 1998 the European Community signed the UN/ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ("the Aarhus Convention"). Provisions of Community law must be consistent with that Convention with a view to its conclusion by the European Community.

(6) It is appropriate in the interest of increased transparency to replace Directive 90/313/EEC rather than to amend it, so as to provide interested parties with a single, clear and coherent legislative text.

(7) Disparities between the laws in force in the Member States concerning access to environmental information held by public authorities can create inequality within the Community as regards access to such information or as regards conditions of competition.

(8) It is necessary to ensure that any natural and legal person has a right of access to environmental information held by or for public authorities without his having to state an interest.

(9) It is also necessary to promote the widest possible systematic availability and dissemination to the public of environmental information, where available by electronic means.

(10) The definition of environmental information should be clarified so as to encompass information in any form on the state of the environment, on factors, measures or activities affecting or likely to affect the environment or designed to protect it, on cost-benefit and economic analyses used within the framework of such measures or activities and also information on the state of human health and safety, conditions of human life, cultural sites and built structures in as much as they are, or may be, affected by any of those matters.

(11) To take account of the principle in Article 6 of the Treaty that environmental protection requirements should be integrated into the definition and implementation of Community policies and activities, the definition of public authorities should be expanded so as to encompass government or other public administration at national, regional or local level whether or not they have specific responsibilities for the environment. The definition should likewise be expanded to include other persons or bodies performing public administrative functions in relation to the environment under national law, as well as other persons or bodies acting under their control and having public responsibilities or functions in relation to the environment.

(12) Environmental information which is physically held by other bodies on behalf of public authorities should also fall within the scope of this Directive.

(13) Environmental information should be made available to applicants as soon as possible and within a reasonable time and having regard to any timescale specified by the applicant.

(14) Public authorities should make environmental information available in the form or format requested by an applicant unless it is already publicly available in another form or format or it is reasonable to make it available in another form or format. In addition, public authorities should be required to make all reasonable efforts to maintain the environmental information held by or for them in forms or formats that are readily reproducible and accessible by electronic means.

(15) Member States should determine the practical arrangements under which such information is effectively made available, bearing in mind the benefits for the environment.

(16) The right of access to environmental information means that the disclosure of information should be the general rule and that public authorities should be able to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, taking into account for the particular case the public interests served by disclosure. The reasons for a refusal must be provided to the applicant within an appropriate time-limit and in writing or electronically if the request was in writing or if the applicant so requests.

(17) Public authorities should make environmental information available in part where it is possible to separate out any information falling within the scope of the exceptions from the rest of the information requested.

(18) Public authorities should be able to make a charge for supplying environmental information but such a charge should not exceed a reasonable amount. A schedule of charges should be published and made available to applicants.

(19) Applicants should be able to seek an administrative or judicial review of the acts or omissions of a public authority in relation to a request.

(20) In order to increase public awareness in environmental matters and to improve environmental protection, public authorities should as appropriate make available and disseminate information on the environment which is relevant to their functions, in particular by means of computer telecommunication and/or electronic technology, where available.

(21) This Directive should be subject to a review in the light of experience and on the basis of reports on the application of the Directive provided by the Member States.

(22) Since the objectives of the proposed Directive cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(23) The provisions of this Directive shall not affect the right of a Member State to maintain or introduce measures providing for broader access to information than required by this Directive,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Objectives

The objectives of this Directive are:

(a) to grant a right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of its exercise; and

(b) to promote, as a matter of course, the widest possible systematic availability and dissemination to the public of environmental information.

Article 2

Definitions

For the purposes of this Directive:

1. "environmental information" shall mean any information in written, visual, aural, electronic or any other material form on:

(a) 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;

(b) 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 (a);

(c) 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 (a) and (b) as well as measures or activities designed to protect those elements;

(d) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in point (c); and

(e) the state of human health and safety, 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 (a) or, through those elements, by any of the matters referred to in points (b) and (c).

2. "Public authority" shall mean:

(a) government or other public administration at national, regional or local level;

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and

(c) any natural or legal person having public responsibilities or functions, or providing public services, in relation to the environment under the control of a body or person falling within points (a) or (b).

This definition shall not include bodies or institutions acting in a judicial or legislative capacity.

3. "Information held for a public authority" shall mean environmental information which is physically held by a natural or legal person on behalf of a public authority.

4. "Applicant" shall mean any natural or legal person requesting environmental information.

5. "Public" shall mean one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups.

Article 3

Access to environmental information upon request

1. Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest.

2. Subject to Article 4 and having regard to any timescale specified by the applicant, environmental information shall be made available to an applicant:

(a) as soon as possible and, at the latest, within one month after the receipt by the public authority referred to in paragraph (1) of the applicant's request; or

(b) within two months of the receipt of the request by the public authority if the volume and the complexity of the information is such that the one-month period referred to in point (a) cannot be complied with. In such cases, the applicant shall be informed as soon as possible, and in any case before the end of that one-month period, of any such extension and of the reasons for it.

3. If a request is formulated in too general a manner, the public authority shall as soon as possible, and at the latest within the time-frame laid down in paragraph 2(a), ask the applicant to specify the request and shall assist the applicant in doing so, for example by providing information on the use of the public registers referred to in paragraph 5(c). The public authorities may, where they deem it appropriate, refuse the request under Article 4(1)(b).

4. Where an applicant requests a public authority to make environmental information available in a specific form or format (including in the form of copies), the public authority shall make it so available unless:

(a) it is already publicly available in another form or format, in particular under Article 7, which is easily accessible; or

(b) it is reasonable for the public authority to make it available in another form or format, in which case reasons shall be given for making it available in that form or format.

For the purposes of this paragraph, public authorities shall make all reasonable efforts to maintain environmental information held by or for them in forms or formats that are readily reproducible and accessible by computer telecommunications or by other electronic means.

The reasons for a refusal to make information available, in full or in part, in the form or format requested shall be provided to the applicant within the time limit referred to in paragraph 2(a).

5. For the purposes of this Article, Member States shall define the practical arrangements under which environmental information shall be made available. These practical arrangements may include:

(a) the designation of information officers;

(b) the establishment and maintenance of facilities for the examination of the information requested;

(c) publicly accessible lists of public authorities and registers or lists of the environmental information held by such authorities and by information points;

(d) requiring officials to support the public in seeking access to information.

Member States shall ensure that public authorities inform the public adequately of the rights they enjoy as a result of this Directive.

Article 4

Exceptions

1. Member States may provide for a request for environmental information to be refused if:

(a) the information requested is not held by or for the public authority to which the request is addressed. In such a case, where that public authority is aware that the information is held by or for another public authority, it shall, as soon as possible, transfer the request to that other authority and inform the applicant accordingly or inform the applicant of the public authority to which it believes it is possible to apply for the information requested;

(b) the request is manifestly unreasonable or formulated in too general a manner;

(c) the request concerns material in the course of completion, internal communications or unfinished documents and data, taking into account the public interest served by the disclosure.

2. Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect:

(a) the confidentiality of the proceedings of public authorities;

(b) international relations, public security or national defence;

(c) the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;

(d) the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest to maintain statistical confidentiality and tax secrecy. Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed;

(e) intellectual property rights;

(f) the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for by national or Community law;

(g) the interests of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, unless that person has consented to the release of the information concerned;

(h) the protection of the environment to which such information relates, such as the location of rare species.

The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account for the particular case, the public interest served by disclosure and whether the information requested relates to emissions into the environment.

Within this framework, and for the purposes of the application of point (f), Member States shall ensure that the requirements of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(6) are complied with.

3. Environmental information held by or for public authorities which has been requested by an applicant shall be made available in part where it is possible to separate out any information falling within the scope of paragraphs 1(c) or 2 from the rest of the information requested.

4. A refusal to make available all or part of the information requested shall be notified to the applicant in writing or electronically, if the request was in writing or if the applicant so requests, within the time limits referred to in Article 3(2)(a) or, as the case may be, (b). The notification shall state the reasons for the refusal and include information on the review procedure provided for in accordance with Article 6.

Article 5

Charges

1. Public authorities may make a charge for supplying any environmental information but such charge may not exceed a reasonable amount. No additional charge shall be made for consulting the requested information in situ.

2. Public authorities intending to make such a charge for supplying information 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.

3. Access to any public registers or lists established and maintained as mentioned in Article 3(5)(c) shall be free of charge.

Article 6

Access to justice

1. Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law. Any such procedure shall be expeditious and either free of charge or inexpensive.

2. In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.

3. Final decisions under paragraph 2 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this Article.

Article 7

Dissemination of environmental information

1. Member States shall take the necessary measures to ensure that public authorities organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available.

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 Directive unless it is already available in electronic form.

2. The information to be made available and disseminated shall be updated as appropriate and shall include at least:

(a) texts of international treaties, conventions or agreements, and of Community, national, regional or local legislation, on the environment or relating to it;

(b) policies, plans and programmes relating to the environment;

(c) progress reports on the implementation of the items referred to in points (a) and (b) when prepared by public authorities;

(d) the reports on the state of the environment referred to in paragraph 3;

(e) data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment.

3. Without prejudice to any specific reporting obligations laid down by Community legislation, Member States shall take the necessary measures to ensure that national, and, where appropriate, regional or local reports on the state of the environment are published at regular intervals not exceeding four years; such reports shall include information on the quality of, and pressures on, the environment.

4. Without prejudice to any specific obligation laid down by Community legislation, Member States shall take the necessary measures to ensure that, in the event of an imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information held by or for public authorities which could enable the public likely to be affected to take measures to prevent or mitigate harm arising from the threat is disseminated, immediately and without delay.

5. Member States shall, so far as is practicable, ensure that any information made available or disseminated, or reports published, in accordance with this Article are clear and comprehensible.

6. The exceptions in Article 4(1) and (2) shall apply in relation to the duties imposed by this Article.

7. Member States may satisfy the requirements of this Article by creating links to Internet sites where the information can be found.

Article 8

Review procedure

1. Not later than ...(7), Member States shall report on the experience gained in the application of this Directive.

They shall communicate the report to the Commission not later than ...(8).

No later than ...(9), the Commission shall forward to the Member States a guidance document setting out clearly the manner in which it wishes the Member States to report.

2. In the light of experience, the Commission shall make a report to the European Parliament and the Council together with any proposal for revision, which it may consider appropriate.

Article 9

Implementation

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ...(10). They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

Article 10

Repeal

Directive 90/313/EEC is repealed with effect from ...(11).

References to the repealed Directive shall be construed as referring to this Directive and shall be read in accordance with the correlation table in the Annex.

Article 11

Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 12

Addressees

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 337 E, 28.11.2000, p. 156 and OJ C 240 E, 28.8.2001, p. 289.

(2) OJ C 116, 20.4.2001, p. 43.

(3) OJ C 148, 18.5.2001, p. 9.

(4) Opinion of the European Parliament of 14 March 2001 (OJ C 343, 5.12.2001, p. 177), Council Common Position of 28 January 2002 and Decision of the European Parliament of ... (not yet published in the Official Journal).

(5) OJ L 158, 23.6.1990, p. 56.

(6) OJ L 281, 23.11.1995, p. 31.

(7) Nine years after the date of entry into force of this Directive.

(8) Nine years and six months after the date of entry into force of this Directive.

(9) One year after the date of entry into force of this Directive.

(10) Two years after the date of entry into force of this Directive.

(11) Two years after the date of entry into force of this Directive.

ANNEX

CORRELATION TABLE

>TABLE>

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 29 June 2000, the Commission sent the Council a proposal for a European Parliament and Council Directive on public access to environmental information(1), based on Article 175(1) of the EC Treaty.

2. The European Parliament adopted a resolution on 14 March 2001(2).

The Economic and Social Committee issued its opinion on 29 November 2000(3). The Committee of the Regions gave its opinion on 14 February 2001(4).

3. Following these opinions, the Commission forwarded its amended proposal to the Council on 7 June 2001(5).

4. On 28 January 2002 the Council adopted its Common Position in accordance with Article 251(2) of the Treaty.

II. OBJECTIVE

The Commission proposal aims at replacing Directive 90/313/EEC on the freedom of access to information on the environment(6) by a new Directive that would take into account experience in applying the old Directive, the case-law of the Court of Justice, the new information and communication technologies and the ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, adopted at Aarhus on 25 June 1998. This "Aarhus" Convention was signed by all Member States and by the Community. It entered into force on 30 October 2001. So far, Denmark and Italy have ratified that Convention.

The proposed Directive would strongly widen the right of access to environmental information contained in Directive 90/313/EEC. This right consists of a passive right, under which administrations must provide information on request, and of an active right, under which administrations must spontaneously disseminate certain pieces of information, preferably on the Internet. This wider information should contribute to a greater public awareness and interest for environmental matters and to a more efficient public participation in the making of environmental decisions.

As a complement to this proposal, the Commission submitted on 19 January 2001 a proposal for a Directive of the European Parliament and of the Council providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending Council Directives 85/337/EEC and 96/61/EC(7). This proposal aims at implementing the second pillar on public participation of the Aarhus Convention.

III. ANALYSIS OF THE COMMON POSITION

1. The Council's Common Position, while maintaining the approach proposed by the Commission, modifies the provisions of the proposal in order to clarify or to strengthen them or to make them more practicable. Many modifications aim at reinstating the original text of the Aarhus Convention.

The Common Position widens the definition of "information relating to the environment" contained in Directive 90/313/EEC so as to cover not only written, visual, aural or data-base information, but also electronic information. The definition not only covers the elements of the environment and the activities and measures affecting or protecting them, but also genetically modified organisms, the interaction among the above elements, economic analyses and the state of human health, conditions of life, cultural sites and built structures affected by the environment.

Where the former Directive only addressed public administrations with responsibilities relating to the environment and private natural or legal persons having public responsibilities in relation to the environment under the control of administrations, the Common Position also covers all governments and public administrations as well as private persons independently performing public administrative functions in relation to the environment. It also adds that public authorities must make available environmental information held on their behalf by natural or legal persons.

2. Regarding the "passive right of information", the Common Position shortens from two months to one month the period within which information must in principle be provided. It also requests providing the information in the format requested by the applicant, unless it is already publicly available and unless it is reasonable to provide it in another form, and requests defining practical arrangements for making the information available, such as information officers and facilities for examination in situ. If the requested information is held by another authority, the request has to be transferred to that authority or the applicant has to be informed of the identity of the authority that is believed to hold the information. A refusal must be notified in writing if the request was in writing or if the applicant requested a written reply. If a request is formulated in a too general manner, the public authorities will within the one-month period ask the applicant to specify his request and assist him in doing so.

As under the previous Directive, charges must be publicised and be of a reasonable amount. The Common Position adds that they may not cover the consultation of public registers nor the consultation in situ of the information.

The administrative or judicial review of Directive 90/313/EEC is replaced by an administrative and judicial review in two stages.

3. Regarding the "active right of information", Directive 90/313/EEC only required providing the public with general information on the state of the environment by such means as the periodic publication of descriptive reports. The Common Position aims at disseminating, in addition, legal texts, policies, progress reports, data from monitoring, information about preventing or mitigating harm arising from imminent threats to human health or the environment, etc. through several means, but in particular, through telecommunication technology.

4. As under the previous Directive, the exceptions cover unfinished documents, internal communications, the confidentiality of public proceedings, security, matters sub judice, commercial, industrial, personal and environmental confidentiality, intellectual property rights and the protection of the environment itself.

5. In a public statement for the minutes, the Council agrees to undertake steps in order to apply to the Community's institutions the same rules as those laid down in the "information" pillar of the Aarhus Convention and calls on the Commission to present a proposal for that pillar, taking into consideration the more extensive requirements of the present Directive. This should contribute to enabling the Community to ratify the Aarhus Convention.

IV. AMENDMENT BY THE EUROPEAN PARLIAMENT ACCEPTED AS SUCH BY THE COUNCIL

The Common Position integrates amendment 3 to recital 8 on extending the right of access to persons living outside the Community (also accepted by the Commission).

V. AMENDMENTS BY PARLIAMENT ACCEPTED IN A DIFFERENT FORM

1. Amendment 1 to recital 1 on the aims of the Directive (partly accepted by the Commission): the Council retained, in a more logical sequence, the essential elements of the amendment, i.e. increase of access to information, awareness of environmental matters, free exchange of views, the more effective participation of the citizens and the improvement of the environment. The Council did not retain the elements that had no corresponding rules in the Articles, such as good administration and improved implementation of Community legislation. The Council added the idea of dissemination of information so as to cover the active information as well.

2. Amendment 17 for a new Article 3(2), second paragraph on clarifying unclear requests (accepted in principle by the Commission): the Common Position contains a new Article 3(3) that takes over all the elements of the amendment, while adding that clarification must be sought as soon as possible and in any case before the end of the one-month period for replying a request. The wording was derived from Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents(8).

VI. AMENDMENTS BY PARLIAMENT PARTLY ACCEPTED BY THE COUNCIL

1. Amendment 9 concerning recital 18 (recital 16 of the Common Position) (partly accepted by the Commission): the Council accepted the main idea according to which disclosure should be the general rule, as well as the deletion of the reference to Directive 95/46/EC.

2. Amendment 13 concerning recital 24 (recital 21 of the Common Position) (partly accepted by the Commission): the Council included the idea of evaluating the Directive on the basis of national reports. The idea of a Commission evaluation report is included in Article 8. The suggestion of four-yearly reportings was not followed.

3. Amendment 15 concerning Article 2 (definitions) (Commission position in line with Council position):

- the Common Position integrates the amendment to paragraph (1)(a) which clarifies that wetlands and coastal and marine areas are covered by the notion of "environmental information",

- concerning Article 2(1)(b), the Council did not accept the reference to nuclear fuel and energy as they do not appear in Aarhus and as these elements are covered by "energy, radiation and radioactive waste". The Council deleted altogether the words "and/or human health and safety" because they are already covered by point (e) and do not appear in Aarhus Article 2(3)(b),

- the additions to paragraph 1(d), (e) and (f) were not accepted as they are not mentioned in Aarhus and as they would widen the scope of the Directive too much ("reports", "indirectly"), or are not affected by the environment (food safety),

- in line with the amendment, the Council reintroduced, into paragraph 2, the Aarhus definition of "public authority", sharing Parliament's reluctance to assimilate to a public authority services of a general economic interest such as transport, waterworks or telephone. On the other hand, the Council did not accept including in point (a) advisory bodies as this would expand the scope of the Directive too much and would give rise to the serious problem of designating those bodies,

- the modification of the last subparagraph of paragraph 2 on judicial or legal bodies was not accepted. The Council returned to the wording of Aarhus and also felt that the text proposed by Parliament would create different regimes between the Member States,

- on a new paragraph 2a, the Council felt the proposed definition of "information held by" to be rather confusing but, recognising the need for clarifying that term, made an addition to Article 2(3) that explains that "held by" means "physically held".

4. Amendment 19 concerning Article 3(5) on practical arrangements for making passive information available to the public (Commission position in line with Council):

- the Council did not accept the modification to the introductory subparagraph and the addition to point (b) containing an obligation to apply cumulatively all the points, as this may be too burdensome and would limit the freedom of the Member States to select the most suitable practical arrangements too much,

- the Common Position does not integrate the proposed point (ba) on replacing information points by lists indicating where information can be found and on placing them on the Internet, because of the enormous amount of work this would involve,

- the last part of Parliament's suggestion on helping the public was accepted and inspired the Council to add a new point (d).

5. Amendment 20 concerning Article 4(1) on refusal of information (Commission position in line with Council for indents 1 to 3):

- the change in the introductory sentence was not accepted as the exceptions could also address bodies not covered by the definition of "public authority" such as private bodies holding the information for an authority,

- the Council accepted the idea in point (b) of helping the applicant to improve the formulation of his request through the new paragraphs 3 and 5(d) of Article 3,

- the Council did not accept deleting the confidentiality of internal communications in point (c), which is also protected by Aarhus Article 4(3)(c), and also maintained the reference to unfinished documents and data contained in Directive 90/313/EEC, Article 3(3),

- regarding the same point (c), the Council did not accept replacing the idea of taking into account the public interest by the concept of weighing the public interest in unveiling the information against the interest served by the refusal: such weighing is not contained in Aarhus; it is a delicate exercise that could lead to difficult court cases; and there are many cases where confidentiality is so absolute that weighing cannot take place (e.g. secrecy of judicial instruction).

6. Amendment 21 concerning Article 4(2) on exceptions:

- the Council did not accept restricting the confidentiality of public proceedings to the cases required by law (point (a). The Council and the Commission did not accept restricting the confidentiality in international relations in point (b) to cases of vital interest, nor abandoning intellectual property rights point (e) as all this is provided for in Aarhus and Directive 90/313/EEC,

- regarding point (d) and the new last subparagraph of paragraph 2, the Commission proposed that information about emissions into the environment which are subject to provisions of Community legislation should be divulged, even where they are covered by commercial and industrial confidentiality. Parliament went further and proposed lifting all other types of confidentiality as well. The Commission disagreed. For its part, the Council returned to the very wording of Aarhus Article 4(4)(d) according to which, within the framework of the commercial and industrial confidentiality, information on emissions which is relevant for the protection of the environment shall be disclosed,

- the Council accepted the amendments concerning the protection of personal data in point (f), while adopting the wording of Aarhus Article 4(4)(f),

- the Common Position follows the amendment on the protection of persons providing information in point (g), while providing for the slightly stronger protection of Aarhus Article 4(4)(g),

- the text also integrates the proposed sentence requiring a restrictive interpretation of the exceptions in line with the end of Aarhus Article 4(4) in fine,

- regarding the weighting of public and private interests (paragraph 2, last subparagraph of the Commission proposal), Parliament proposed a stronger wording with which the Commission disagreed. The Council however deleted altogether any reference to weighting and reintroduced the Aarhus idea of taking into account public interest for the reasons outlined under Section VI(5), last indent above.

7. Amendment 25 concerning Article 6 on access to justice (The Commission in line with Council):

- the Common Position takes up, in paragraphs 1 and 2, the proposed requirement of independence and impartiality of the administrative and judicial bodies reviewing a decision,

- like the Commission, the Council considers the proposed new paragraphs 2a and 3a to be of an excessive detail. In accordance with the subsidiarity principle, the right of information of the courts and the recovery of legal costs should continue to be regulated by the legal systems of the Member States.

8. Amendment 28 concerning Article 8 on the review of the Directive (partially accepted by the Commission):

- regarding the dates, the Council clearly believes it to be more prudent to work with time-spans after entry to force rather than establishing fixed dates. It also believes that 31 December 2005 is too soon for establishing national reports on the implementation of the Directive and prefers nine years after entry into force,

- the Council agreed with a guidance document on the implementation of the Directive,

- the Council agreed with the idea that principles of the Directive should also be applied by the Community institutions. The Council however considers that procedural steps aiming at bringing this matter forward should be laid down in a public statement for the Council minutes as referred to in Section III(5). Making a provision inside the Directive falls clearly outside the scope of this Instrument, which only applies to the Member States. Parliament could be associated with the Council statement if it wishes.

VII. AMENDMENTS BY PARLIAMENT NOT ACCEPTED BY THE COUNCIL

(Most amendments were also not accepted by the Commission, who however accepted parts of amendments 11, 14, 24 and 26):

1. amendment 2 to recital 2 (change of mentality): the Council felt that the new text delivered, with a more complex wording, basically the same message as the Commission's text;

2. amendment 4 to recital 9 (future technologies): it could be imprudent to impose unknown technologies (see point 12);

3. amendment 5 to recital 10 (definition of environmental information): This widens the scope too much (see Section VI(3), indent 3 of Article 2(1)(d);

4. amendment 6 to recital 14 was rejected as Article 3(2) does not require immediate delivery of the information;

5. amendment 7 concerning recital 15 on the format of the information: see motivation under amendment 18, first part (point 12);

6. amendment 8 concerning recital 17: the modification merely repeated Article 3(5)(c) without motivating it;

7. amendment 10 to recital 19: the Council deleted this recital altogether (see Section VI(6), indent 2);

8. amendment 11 to recital 21 on charges (recital 18 of the Common Position): see point 15 below on amendment 24 concerning Article 5;

9. amendment 12 for a new recital 23a on the quality of the information was not accepted for the same reasons as for not accepting amendment 27 for a new Article 7a (Section VII(17));

10. amendment 14 to Article 1 (objectives): the amendment to point (a) was not considered to be very relevant. The Council deleted the Commission's text concerning the use of modern technologies in point (b) as this is not an objective but only a means towards that objective. On the proposed new point (ba) that the Directive should establish the standard for access to information from the Union's institutions, see Section VI(8) indent 3 above;

11. amendments 16 and 30 concerning Article 3(2)(a) and (b) were rejected as it is often impossible, in particular in smaller services, to reduce from one month to two weeks the deadline for replying to ordinary requests for information and from two months to six weeks the deadline for complex requests;

12. amendment 18, concerning the form of the replies in Article 3(4): regarding the first part of the amendment, the Council maintained point (a) as the applicants should be encouraged first to address the active information systems referred to in Article 7. It also maintained point (b) of the Commission proposal as it is clearer than the wording of Parliament obliging the authorities wherever possible to reply in the form requested by the applicant.

Regarding the second part, the Council felt that it could be imprudent to ask the Member States to adopt future communication technologies without knowing what they will be and how much they will cost. Such commitments should be imposed through future amendments to the Directive. In the meantime, Member States remain free to adopt future technologies if they consider this to be useful;

13. Amendment 22 for a new Article 4(2a) requesting Member States to establish criteria for handling exceptions was rejected as it would create new bureaucracy and as it is up to each administration, under the control of the courts, to interpret the exceptions in accordance with the national laws that will implement the Directive;

14. Amendment 23 for additions to Article 4(4) according to which failure to reply in time should imply a commitment to provide the information was not accepted as such failure should rather give raise to the sanctions in Article 6.

Concerning the second part, the idea of giving the name of the person or authority in charge of material under consideration does not appear in Aarhus and may not be practicable and could therefore be part of the optional practical arrangements in Article 3(5).

On the new paragraph 4a, the anonymity of informants is already covered by Article 4(2)(g);

15. amendment 24 concerning Article 5 on charges changes the order of the sentences without obvious need. The Council could not accept the new idea that charges may not cover time spent on searches, nor the idea that information for educational purpose shall be free of charge: searches may very time-consuming and costly, freedom of charge may give rise to frivolous requests for information and the notion of "education" is very vague;

16. amendment 26 concerning Article 7 on the active information concerns matters that are better left to the individual Member States to decide on. The amendment would impose highly time-consuming tasks (establishing the databases and registers in the first part of the amendment) or putting data on the Internet that are so detailed and voluminous that they should rather be subject to the passive information (the authorisations and studies in the second part). The words "at least" were however added to the opening sentence of paragraph 2;

17. amendment 27 for a new Article 7a on the quality of environmental information: paragraphs 1 and 2, which oblige the information to be accurate and up-to-date and to specify the measurement methods used in information in factors and emissions, are unduly burdensome on public authorities. Moreover, accurateness of data is often impossible to guarantee. Paragraph 3, which concerns the harmonisation of emission measurement procedures, falls outside the scope of the Commission proposal;

18. amendment 29 of Article 9 proposes the implementation of the Directive 12 months after publication. The Council insists that two years are necessary.

VIII. OTHER AMENDMENTS INTRODUCED BY THE COUNCIL

1. The preamble

Recitals 9, 11, 12 (ex-13), 13 (ex-14), 14 (ex-15), 16 (ex-18), 18 (ex-21), 20, 21 and 22 (ex-23, 24 and 25) were adapted to the changes in the text. For the same reason, recitals 12 and 19 of the proposal were deleted. Recital 23, which notes that Member States may provide for a broader access to information, is new.

2. Article 1(b) on the objectives

The Council replaced the Commission proposal's factual description of the aims of the active information ("to ensure that environmental information is made available") by a more proactive formulation ("to promote the widest possible availability"). The Council also deleted the Commission's text concerning the use of modern technologies as this is not an objective but only a means towards the objective of wide information.

3. Article 2 on definitions

In the introductory sentence of paragraph 1, the unclear word "accessible" was replaced by the word "material" appearing in Aarhus Article 2(3).

In paragraph 1, the points (b) on factors and (c) on emissions were merged.

In paragraph 3, the Council explained that "information held" means "physically held" and deleted the Commission proposal's limitative requirement for an arrangement between the holder and an authority.

The Council added the definition of "public" contained in Aarhus (paragraph 5).

4. Article 3 on "passive information"

The Council deleted paragraph 3 of the proposal, which instructed authorities to take into account specific time-scales specified by applicants alleging specific purposes, but modified the introductory sentence of paragraph 2 in the sense that the authorities must take into account any time-scale specified by any applicant, whether or not it is set for specific purposes.

In paragraph 2(a), the Council substituted for the word "concerned", the words "referred to in paragraph 1", in order to make it clear that the one- (or two) month period starts running from the moment the responsible authority, and not any other authority, has received the application. Where an application was addressed to the wrong authority, the latter must, under Article 4(1)(a), as soon as possible transfer the request to the competent authority or inform the applicant of the identity of the competent authority.

A reference to Article 7 was added to point 4(a) in order to clarify that information need not be given if it is available through active information.

5. Article 4 on exceptions

The Council formulated point 1(a) in a more objective manner ("is aware that the information is held") and added the option of informing the applicant of the competent authority.

On 2(d), the Common Position clarifies that statistical confidentiality and tax secrecy may also be part of the commercial or industrial confidentiality.

In line with Aarhus Article 4(7), the Council restricted the requirement for replying in writing contained in paragraph 4 to the cases where the request was in writing or where the applicant requested a written reply.

6. Article 5 on charges

The Council transformed the proposed prohibition of advance payment for information into an option as applicants often forget or refuse to take the information after the effort of searching has been made. On the other hand, the Council provided that such requirement has to be announced beforehand.

7. Article 6 on access to justice

The Council swapped the sequence of paragraphs 1 and 2 so that the first paragraph refers to administrative review and the second to judicial review.

The Council replaced paragraph 3 of the proposal by Aarhus Article 9(1), last subparagraph.

8. Article 7 on dissemination of environmental information

The Common Position added to paragraph 1, subparagraph 1, that the authorities should only provide information that is relevant for their functions. The new subparagraph 2 of paragraph 1 excludes from electronic dissemination information that was not available in electronic form before the entry into force of the Directive.

In the introductory sentence of paragraph 2, the Council introduced the obligation of updating the information as appropriate, in line with Aarhus Article 5(1)(a).

In point (e) of paragraph 2, the Common Position provides for the possibility of divulging summaries of data, in order to avoid putting on the Internet confidential information or the huge amounts of data that are often collected during environmental monitoring.

The last sentence of paragraph 2 (paragraph 1 of the Commission proposal) on maintaining information in computerised form was deleted. In return, the opening sentence states that the information should be organised with a view to its computerised dissemination, where available.

The Council added a new paragraph 7 enabling the Member States to satisfy the active information obligations through the creation of links to Internet sites.

IX. CONCLUSION

The Common Position aims at giving the public the widest possible access to environmental information while respecting the confidentiality of certain data and the need to avoid large and costly increases of work for the public administrations. The Common Position also reverts in many cases to the wording of the Convention of Aarhus.

The Commission accepted the Common Position.

(1) OJ C 337 E, 28.11.2000.

(2) OJ C 343, 5.12.2001, p. 177.

(3) OJ C 116, 20.4.2001, p. 43.

(4) OJ C 148, 18.5.2001, p. 9.

(5) OJ C 240 E, 28.8.2001, p. 289.

(6) OJ L 158, 23.6.1990, p. 56.

(7) OJ C 154 E, 29.5.2001, p. 123.

(8) OJ L 145, 31.5.2001, p. 43.