Passive access to environmental information in the EU - An analysis of recent legal developments

European Energy and Environmental Law Review

Volumn 17, Issue 4, 2008, Pages 186-198

  Ferreira, Sofia de Abreu ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL JUSTICE; ENVIRONMENTAL LEGISLATION; EUROPEAN COMMISSION; EUROPEAN UNION; REGULATORY FRAMEWORK;

EID: 50849125164     PISSN: 09661646     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (47)

1. Kysar, D., "Democratizing Knowledge Generation: An Introduction to Key Issues", paper presented at the Conference on Environmental Governance and Democracy, 10-11 May 2008, available at http:// www.yale.edu/envirocenter/envdem/documents.htm, p. 5.
2. Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 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, in OJ L264, 25.09.2006, at p. 13.
3. Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, in OJ L 145 of 31 May 2001, at p. 43.
4. Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (hereafter the "Aarhus Convention"), adopted at Aarhus, Denmark on 25 June 1998 and entered into force on 30 October 2001, available at http://www.unece.org/env/pp/welcome.html (last visited on May 2008).
5. Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Aarhus Convention on Access to information, Public Participation in Decision-making and Access to Justice in Environmental Matters, in OJ L 124/1 of 17 May 2005 (hereafter, the Aarhus decision).
6. Krämer, L., EC Environmental Law, 6th edition, Sweet & Maxwell, London, 2007.
7. Council Directive 90/313/EEC on the Freedom of Access to Information on the Environment of 7 June 1990, in OJ L 158 of 23.06.1990.
8. ECJ, Case C-181/73, R & V. Haegeman v. Belgian State, 30.04.1974, in ECR 1974, at p. 449, at §5.
9. Aarhus decision, see above footnote 5.
10. COM (2007) 185 final, 18.04.2007.
11. SEC (2008) 29/2, 16.01.2008.
12. COM (2008) 229 final, 30.04.2008.
13. Ibidem, at p. 7.
14. Article 2 (2) of the Transparency Regulation enables the institutions to extend the subjective scope of the legal regime. The Council is the only institution to have granted a broad and unlimited access to their documents, erasing the distinction between EU and non-EU natural or legal persons. The European Parliament maintained in its internal rules the wording of Article 2 (1), of the Transparency Regulation while adding that "access to Parliament documents shall as far as possible be granted to other natural or legal persons in the same way. "The Commission in its internal rules on access to documents extended its regime to third country nationals and legal persons, with the exception of the possibility of using the complaint mechanism before the European Ombudsman.
15. This Article describes environmental information as "any information in written, visual, aural, electronic, or any other material form on: (i) 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 thesee lements; (ii) factors, such as substances, energy, noise, radiation and 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 (i); (iii) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements of the environment inpoints (i) and (ii) as well as measures or activities designed to protect those elements; (iv) reports on the implementation of environmental legislation; (v) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to it in point (iii); and, (vi) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures, in as much as they are or maybe affected by the elements of the environment referred to in point (i) or, through those elements, by any of the matters referred to inpoints (ii) and (iii)."
16. ECJ, Case C-64/05P, Kingdom of Sweden v. Commission of the European Communities (hereafter, Sweden v. Commission), 18 December 2007.
17. For "comitology committees documents", see Case T-188/97, Rothmans International BV v. Commission of the European Communities, 19 July 1999;
18. for "third-party documents", see Case T-92/98, Interporc Im-und Export GmbH v. Commission of the European Communities, 7 December 1999.
19. See, for the Council, Article 1 (2) together with Article 2 (2), Decision 93/731. And, for the Commission, Article 2 (1 and 2) and Annex (Code of Conduct), Decision 94/90.
20. Case T-76/02, Mara Messina v. Commission of the European Communities, 17 September 2003 (hereafter, the Messina case);
21. Case T-168/02, IFAW Internationaler Tierschutz-Fonds gGmbh v. Commission of the European Communities (hereafter, the IFAW case), 30 November 2004;
22. Case T-187/03, Isabella Scippacercola v. Commission of the European Communities, 17 March 2005 (hereafter, the Scippacercol acase).
23. Messina case, ibidem.
24. IFAW case, above footnote 19. In this case, an environmental NGO (IFAW) wanted to have access to certain documentation that was on the basis of the declassification of Mühlenberer Loch site as aprotected area under the Habitats Directive. Germany was authorized to declassify it by the Commission as well as to use that area for some development projects (enlargement of a factory and a runaway). IFAW was only given partial access to the requested documents as the Commission denied it access to the remaining documents on the grounds that they originated from Germany and this Member State exercised its lawful veto power under Article 4 (5) of the Transparency Regulation.
25. See §59, Case T-169/02, IFAW case, ibidem.
26. Also, §58, Case T-187/03, Scippacercola case, abovefootnote 19.
27. C-64/05P, Sweden v. Commission, supra footnote 16.
28. See §24-25, Sweden v. Commission, ibidem.
29. Opinion of AG Poiares Maduro delivered on 18 July 2007, Case C-64/05P, Kingdom of Sweden v. Commission of the European Communities.
30. Sweden v. Commission, §86, above footnote 16.
31. See, in particular, §55 of Sweden v. Commission, above footnote 16.
32. The institution cannot accept a Member State's objection to disclosure of a document originating from that State if the objection gives no reasons at all or if the reasons are not put forward in terms of the exceptions listed in Article 4 (1) to (3) of Regulation 1049/2001. (...) (§88)"; "Finally, ( ... ), the institution is itself obliged to give reasons for a decision to refuse a request for access to a document. Such an obligation means that the institution must, in its decision, not merely record the fact that the Member State has objected to disclosure of the document asked for, but also set out the reasons relied on by that Member State to show that one of the exceptions (...) applies. (§89)" Italics added.
33. Above footnote 12, at p. 19.
34. CFI, Case T-264/04, WWF-EP0 v. Council of the European Union, 25 April 2007.
35. For an analysis of this case see De Abreu Ferreira, S., "The Fundamental Right of Access to Environmental Information: a Critical Analysis of WWF-EP0 v. Council", in Journal of Environmental Law, volume 19, issue 3, Oxford University Press (2007).
36. CFI, Case T-14/98, Heidi Hautala v. Council of the European Union, 19 July 1999.
37. See, for instance, Case T-105/95, WWF UK (World Wide Fund for Nature) v. Commission of the European Communities, 5 March 1997, at §56 (hereafter WWF UK v. Commission).
38. 1 The institutions shall refuse access to a document where disclosure would undermine the protection of: (a) the public interest as regards: - public security, - defence and military matters, - international relations, -the financial, monetary or economic policy of the Community or a Member State; (b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding protection of personal data. 2. The institutions shall refuse access to a document where disclosure would undermine the protection of: - commercial interests of a natural or legal person, including intellectual property, court proceedings and legal advice, - the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure. 3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure. Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure. 4. As regards third party documents, the institution shall consult the third party with a view of accessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed. 5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement. 6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released. 7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.
39. Joined Cases T-110/03, T-150/03 and T-405/03, José Maria Sison v. Council of the European Union, 26 April 2005 (hereafter Sison v. Council). See, especially, §46-47, 51-52, 54, 61-63, 65, 88.
40. Case T-84/03, Maurizio Turco v. Council of the European Union, 23 November 2004 (hereafter Turco v. Council).
41. For a different opinion, considering that the burden is on the Institutions and that the applicant does not need to refer to such an overriding public interest, see Peers, S., "The New Regulation on Access to Documents: A Critical Analysis", Yearbook of European Law 21, Oxford University Press (2001-2002), pp. 385-442.
42. A definition of third parties is provided in Article 3 (b) of Regulation 1049: "third party mean any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community Institutions and bodies and third countries."
43. See above footnote 31. The ECJ upheld this interpretation in the Case C-535/99P, Council of the European Union v. Heidi Hautala, 6 December 2001.
44. Article 6 (3): "In the event of an application relating to a very long document or to a very large number of documents, the institutions concerned may confer with the applicant informally, with a view to finding a fair solution.
45. Case T-2/03, Verein für Konsumenteninformation v. Commission of the European Communities, 13 April 2005.
46. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions on the Mid-term Review of the Sixth Community Environment Action Programme, COM (2007) 225 final, 30.04.2007, at p. 3.
47. European Environmental Agency, The European Environment - State and Outlook 2005, Copenhagen 2005, at p. 21.