Access to Environmental Information Provided by the EU Institutions

1. Access to Environmental Information Provided by the EU Institutions Prof. Jan H. Jans

2. Why focus on the EU? • Most international organisations have access to (not just environmental) information practices • the WTO information rule makes all official documents unrestricted with certain exemption criteria and a process for derestriction • the OECD access to information policy makes all OECD documents publicly accessible unless specifically designated as classified for official use or as confidential • Fewhave a written policy or clear guidelines • ‘grey’ areas (preparatory or backgrounddocuments) • However,in the EU • public access to information is viewed as a right • there is a clear set of procedures for members of the public to request information • the system is rather transparant

3. What is the context? • General aspects to be taken into account • Application of EU environmental law is part of the competence of the MS • EU Commission does not have a general licensing/permitting competence in the area of environmental policy • EU Commission does not have general inspection/supervision/monitoring powers on the territory of the MS • EU documents; documents originating from the MS; documents originating from other ‘third parties’ • What is available? • Almost every document related to EU environmental policymaking: green papers, white papers, drafts, communications, guidelines, newsletters, speeches, statistics, studies, judgments of the ECJ and CFI • reports on the implementation and enforcement by the MS of EU environmental law • What are the main problems? • WWF case: Information related to infringements of the MS • IFAW case: most of the more sensitive information originates from the MS • Information from ‘other’ third parties

4. Access to information: the ground rules • Article 1 EU Treaty states that in the European Union decisions are taken as openly as possible • Article 255 EC Treaty reads: • Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3. • General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam. • Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.

5. Access to information: a fundamental (European) right? • Article 42 EU Charter of Fundamental Rights • Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents • Article 42 of the Charter will (?) become Article II-102 of the Constitutional Treaty • Article 255 EC Treaty will (?) become Article I-50 CT • scope widened and changed

6. The relevance of Regulation 1049/2001 • Art. 2(1) Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation. • (2) The institutions may, subject to the same principles, conditions and limits, grant access to documents to any natural or legal person not residing or not having its registered office in a Member State. • (3) This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.

7. The exceptions of Regulation 1049/2001 • Mandatory exceptions that are subject to a ‘harm test’ (Article 4 § 1). Access shall be denied where disclosure would [and not could!] 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 the protection of personal data.

8. The exceptions of Regulation 1049/2001 • Interests to be protected when disclosure would undermine their protection, unless there is an overriding public interest in disclosure (Article 4 § 2) • commercial interests of a natural or legal person, including intellectual property, • court proceedings and legal advice, • the purpose of inspections, investigations and audits. • Internal documents (Article 4 § 3) • if disclosure would seriously undermine the institution’s decision-making process • Separate regime for sensitive documents

9. Procedural requirements • Time limits for the request? • Request in writing • Promptly • Costs? • MS information: veto ex Article 4(5) • A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement • Third party information: consultation required ex Article 4(4) • the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed

10. The common position to implement the Aarhus Convention • Article 3 CP • Regulation 1049/2001 shall apply to any request by an applicant for access to environmental information held by Community institutions and bodies without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities. • For the purposes of this Regulation, the word "institution" in Regulation 1049/2001 shall be read as "Community institution or body". • Article 6 CP • As regards Article 4(2) first indent, an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment. As regards the other exceptions set out in Article 4(2) and (3) the fact that the information requested relates to emissions into the environment shall be taken into particular account when assessing whether or not there is an overriding public interest in disclosure. • Cf. Aarhus: grounds for refusal (restrictive interpretation) ‘taking into account whether the information requested relates to emissions into the environment’

11. Other provisions in the CP to satisfy Aarhus • Article 6(2) • In addition to the exceptions set out in Article 4 of Regulation 1049/2001, Community institutions and bodies may refuse access to environmental information where disclosure of the information would adversely affect the protection of the environment to which the information relates, such as the breeding sites of rare species. • Article 6(3) • When a Community institution or body holds environmental information originating from a Member State it shall consult with that Member State and shall apply any relevant exceptions under Community law. The institution or body concerned shall release the information if no exception applies.

12. EU law compatible with Aarhus? • Secrecy and not openness is the general ‘habitus’ of the institutions and their civil servants • Article 4(1) Regulation 1049/2001: ‘shall refuse’ implies mandatory exceptions. Aarhus: ‘may be refused if the disclosure would adversely affect’. Aarhus provides for a series of discretionary exceptions, based on a system for the balancing of interests involved • Article 4(1)(a) Regulation 1049/2001: the exception derived from the financial, monetary or economic policy of the Community or a Member State is one that is added to the exhaustive list of exceptions in the Aarhus Convention and which is therefore contrary to the latter's provisions • Does Article 6(3) imply recognition of a power of veto for Member States in the event of requests for access to certain environmental information? Establishing such a veto is contrary to the Aarhus Convention

13. Legal protection in case of refusals • Regulation 1049/2001: in case of refusals, access to the CFI and/or complaints to the EU Ombudsman • Does the CP change this with respect to NGOs? • Article 10(1): Any non-governmental organisation which meets the criteria set out in Article 11 is entitled to make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act. • Article 12(1): The non-governmental organisation which made the request for internal review pursuant to Article 10 may institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty. • Substantive standards • Aarhus: in dubio: pro environmental protection; restricted interpretation refusal grounds • Regulation 1049/2001 and the CFI: in dubio: pro secrecy? Broad discretionary powers; judicial deference to the EU institutions

14. So what are the lesson to be learned from the EU? • access to information is a (fundamental) right • need for a clear set of procedures; make it transparant • make it an actio popularis, no showing of interest is required • a broad definition of ‘documents’ • restrictive interpretation refusal grounds; balancing of interests • particular attention should be given to ‘third party’ documents (and member state information in the case of international organisations) • judicial protection should be ensured; be aware of judicial deference to authorities!