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Participatory and Procedural Rights in Environmental Matters

Module 2: Access to Environmental Information at Member State Level 1/3

The steps announced in the 4th Environmental Action Programme to improve public access to information resulted in the adoption of Directive 90/313/EEC. From February 14th 2005, Directive 90/313/EEC was replaced with Directive 2003/4/EC, which consolidates the Court’s case law concerning Directive 90/313/EEC and expands the existing access to environmental information.

Case C-266/09 Stichtung Natuur en Milieu, Judgement of 16th December 2010, provides that the date on which a decision concerning access to information was taken determines whether Directive 2003/4/EC or its predecessor is applicable. All such decisions taken after February 14th 2005 are thus subject to the current Directive, even when the information in question was filed before the date.

The scope of the Directive is confined by 2 concepts:

  • ‘environmental information’ and
  • ‘public authorities’.

The definition of ‘environmental information’ encompasses all media and forms and every aspect of the environment (Article 2(I) of Directive 2003/4/EC).

‘Public authority’ is also widely defined (Article 2(2) of Directive 2003/4/EC), and includes bodies without a specific environmental function or objective at all levels of government as well as private entities having public functions or responsibilities. Environmental information held on behalf of the public authorities should be accessible (Article 2(4) in connection with Article 3(I) of Directive 2003/4/EC).
NB: special regimes on access to environmental information exist.

The central provision is Article 3(1) of Directive 2003/4/EC – it requires the Member States to make environmental information available upon request without the applicant having to state an interest. The request must be precise. Requests that are too general may be refused, provided that the authority has invited the applicant to specify his request (Article 4(1)(c) in connection with Article 3(3) of Directive 2003/4/EC). The duty to set up a dialogue with the applicant applies to requests sent to the wrong public authority (Article 4(1)(a) of Directive 2003/4/EC). In order to facilitate access to environmental information, Article 3(5) of Directive 2003/4/EC requires the Member States to set up registers and lists of this information.

Access to environmental information is subject to exceptions (listed in Article 4 of Directive 2003/4/EC) – exceptions that relate primarily to the internal working of the authority (1st paragraph of Article 4 of Directive 2003/4/EC); exceptions involving the interests of third parties or confidentiality of commercial information (Article 4(2)(d) of the European Directive 2003/4/EC). Whenever one of the exceptions is invoked by an authority, there must be a balance between the public interest served by free access to information and the interests that are protected by the exception (last paragraph of Article 4 of Directive 2003/4/EC). Exceptions must be narrowly interpreted in all cases and conform with the Aarhus Convention.

There will always be an overriding public interest in disclosure of the information if it relates to emissions into the environment (exception of interests listed in Article 4 paragraph 1 and 2 (b), (c) and (e) of Directive 2003/4/EC). Emission-related material must always be made public. However, this is difficult because the term ‘emissions’ is not further defined. However, it seems likely that this concept will receive a wide interpretation due to the Court’s case law concerning Directive 90/313/EEC, leading to environmental information being as widely accessible as possible. This is interesting particularly in connection with the PRTR Regulation. Where it is possible to separate out information that is held by the public authorities that is subject to one of the exceptions in Article 4 of the European Directive 2003/4/EC, it will be supplied to the public.

 


Developed by the Academy of European Law (ERA)