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Doc. 8565
5 October 1999

Access to information, public participation in environmental decision-making and access to justice - implementation of the Århus Convention

Report

Committee on the Environment, Regional Planing and Local Authorties

Rapporteur : Ms Monika Langthaler, Austria, Not registered in a group

Summary

      The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted and signed at the fourth Ministerial Conference "Environment for Europe" in Århus on 25 June 1998. Thirty-nine countries and the European Community have already signed it. To successfully fulfil its role, the Convention should enter into force without delay and be applied correctly. To this end, the United Nations Economic Commission for Europe (UN-ECE) set the goal for the Convention to enter into force by the year 2000.

Consequently, there is a need to promote the Convention’s ratification and to emphasise its implementation pending its entry into force. The overall objective of this effort is to speed up the ratification by individual countries by raising political and public awareness of the Convention, and by providing assistance to Signatory Parties and non-Signatory Parties - in particular countries in transition - in their ratification process.

The explanatory memorandum examines the provisions of the Convention itself, opportunities to be considered by the Signatory Parties while in the process of ratifying, considerations for effective implementation and the roles of the different actors including the Council of Europe and its Parliamentary Assembly.

I.       Draft recommendation

1.       On the eve of the third millennium, the state of the European environment remains a matter of serious concern.

2.       Sustainable development in Europe will only be effectively achieved if the public becomes an active and full partner in decision-making at all levels and therefore access to environmental information, public participation and access to justice are prerequisites to involving the public in environmental decision-making.

3.       The Assembly welcomes the fact that at the Fourth Ministerial Conference held in Århus, Denmark, in June 1998, the Environment Ministers of 391 countries and the European Union signed the “Convention on access to information, public participation in environmental decision-making and access to justice” drafted in the framework of the United Nations Economic Commission for Europe (UN-ECE).

4.       Furthermore, the Assembly welcomes serious efforts taken by a significant number of Signatories to ratify the Århus Convention during year 2000.

5.       The Assembly notes that the Convention establishes minimum standards and that it leaves to the discretion of the Signatory Parties to establish or maintain more progressive standards than those laid down in the Convention. In that regard, the Assembly identifies a number of challenges to be met in the process of ratification.

6.       The Assembly considers that it is essential that national parliaments should lead by example when it comes to democratic practice and transparency and apply the principles of the Århus Convention in their daily work.

7.       It notes the exemption of the deliberate release of Genetically Modified Organisms (GMOs) from public participation requirements, in spite of the potential negative environmental impact of such deliberate release and is concerned at the discretion given to Governments not to apply the public participation provisions of the Convention to decision making on GMOs.

8.       It is equally concerned at potential scope for misuse of the exemption from access to information requirements on the grounds of commercial confidentiality and recognises the need to introduce a more precise definition of the term in national legislation.

9.       It strongly supports the ongoing co-operation between the Signatory Parties to expand in the future the list of activities requiring public participation procedure (Annex I of the Convention) and to develop pollutant release and transfer registers in order to provide harmonised data across Europe.

10.       The Assembly thus recommends that the Committee of Ministers :

i.       take into account the principles of the Århus Convention in the work of the Council of Europe, in particular, concerning preparation of legal instruments, policies and programmes, when these may have consequences for the environment;

ii.       instruct the appropriate body of the Council of Europe to follow the implementation of the Århus Convention as part of the organisation's regular co-operation with the United Nations Economic Commission for Europe (UN-ECE);

iii. call on all member state governments :

a to sign and ratify the “Convention on access to information, public participation in environmental decision-making and access to justice” (Århus, 1998) as soon as possible while establishing or maintaining more progressive standards than those laid down in the Convention;

b. to put in place all legal, administrative, and other instruments to ensure that the Convention is fully and effectively implemented;

c. to take into account public participation requirements in the early process of preparing legislation, policies and programmes, when these may have consequences for the environment.

II.       Explanatory memorandum by the Rapporteur

Contents

1.       Introduction

2.       Outline of the UN-ECE Convention

2.1       Objective

2.2       Definitions

2.3       General provisions

2.4       Access to environmental information

2.5       Public paricipation

2.6       Access to justice

3.       Process of signing and ratification

4.       Challenges to improve the Århus Convention

5.       Implementation

5.1       Implementation at national level

5.2       Role of international organisations

      5.2.1       United Nations Economic Commission for Europe (UN-ECE)

      5.2.2       European Union (UE)

      5.2.3       European Environment Agency (EEA)

      5.2.4       Council of Europe

5.3       Role of international NGO coalition

6.       Conclusions

1.       Introduction

On the occasion of the Fourth Ministerial Conference held in Århus, Denmark, in June 1998, the Environment Ministers of 392 countries and the European Union signed the UN-ECE3 “Convention on access to information, public participation in environmental decision-making and access to justice”.

The Convention is one of the results of a long process of co-operation at pan-European level – so-called "Environment for Europe" process - which began in Dobris (former Czechoslovakia) in June 1991, as the first meeting of Environment Ministers from countries, who were members of the United Nations Economic Commission for Europe.

Public participation has emerged as one of the main achievements of the “Environment for Europe” process, both in the procedures followed and in the substantive content. At the Third Ministerial Conference held in Sofia in 1995, Environment Ministers from all countries in Europe, the United States, Canada and the Central Asian Republics of the former Soviet Union made two important decisions relating to access to environmental information and public participation. First, they endorsed a set of UN-ECE Guidelines on access to environmental information and public participation in environmental decision-making. Second, they agreed that the possibility of a Convention on public participation should be considered with appropriate involvement of non-governmental organisations (NGOs). As regards procedures, the process has been relatively open with NGOs having access not only to Ministerial Conferences and official preparatory meetings but also to some of the working groups, committees and task forces where most of the real political discussions took place.

The final text of the Convention was therefore a result of a two-year period of intense negotiations between governments themselves on the one hand and civil society represented by a coalition of NGOs on the other hand. The provisions in the Convention go well beyond the standards existing in international law and national environmental legislation in many countries and guarantee citizens the right to influence environmental decisions.

2.       Outline of the UN-ECE Convention

2.1       Objective

Article 1 sets out the objective of the Convention “to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being”. While this wording is more anthropocentric the “right to a healthy environment” wording that was originally proposed, the text of the Convention nevertheless represents an important step forward in the recognition of environmental rights in international law.

2.2       Definitions

The definition of public authority extends to all governmental bodies including non-environmental authorities as well as private bodies providing services under the control of public authorities. However, it does not include bodies and institutions acting in a judicial or legislative capacity (national or regional parliaments) or international bodies with the possible exception of the European Union4.

Although the definition “environmental information” caused a certain controversy during the negotiations, the final text nevertheless gives a broad definition covering any information in written, visual, aural, electronic or any other material form relating to the state of elements of the environment, substances, energy, noise, radiation, activities and measures undertaken by private sector or public administration that are affecting or are likely to affect the elements of the environment as well as information relating to the state of human health and safety, conditions of human life, cultural sites and built structures.

The definition of “the public” includes any member of the public without discrimination to his or her citizenship, residence or motive as well as associations of individuals recognised under national law.

2.3       General provisions

General provisions of the Convention deal with the general obligations of the parties to comply with the Convention and to envisage measures to enforce it, to enable officials to provide assistance and guidance to the public, to promote environmental education and awareness of the public, to provide recognition and support to environmental NGOs, to be free to maintain or introduce measures providing broader provisions than those stipulated in the Convention, to promote the principles of the Convention in international environmental decision-making processes, to prevent penalisation, persecution or harassment of people exercising their rights under the Convention and to apply the principle of non-discrimination as to citizenship, nationality or residence.

The Convention itself is subdivided into “three pillars”: access to environmental information, public participation and access to justice.

2.4       Access to environmental information

In response to a request for environmental information and within one month following the request (or two months in exceptional cases), public authorities are required to make such information available without an interest having to be stated and in the form requested. In the event of emergency, the requests should be answered immediately and without delay where disclosure of information would result in preventing an imminent threat to health or the environment.

This provision is followed by a number of exemptions (no information or documents available, request being too general, confidentiality, defence, commercial and industrial information, intellectual property rights, etc.). There is however, a general obligation for the parties to interpret most of the exemptions in a restrictive way and to apply an overriding “public interest test” for virtually all exempt categories of information. The burden of proof should rest with those seeking to withhold the information.

Public authorities can make charges for supplying information providing it does not exceed a reasonable amount. The implementation of this provision in practice is important since it may be used as an obstacle to providing information.

Article 5 gives guideline as to the form and content of collected data and other relevant information (electronic data bases, national reporting, legislation and international treaties, public policies, plans and programmes, data from operators such as eco-labelling and eco-auditing schemes, analyses of policy proposals, national system of pollution inventories or registers, etc.).

2.5       Public participation

Adequate public participation in environmental decision-making involves many important components ranging from early phases of defining a proposal (projects, plans, programmes and policies) to a phase of implementation and monitoring (existing installations).

In annex I, the text refers to a list of activities to be considered for public participation: energy sector; production and processing of metals, mineral industry, chemical industry, waste management, waste-water treatment, industrial plants for timber and paper production, infrastructure (railways, airports, motorways, inland waterways, trading ports), groundwater abstraction, extraction of petroleum and gas, dams, pipelines, quarries, electrical power lines, and some other activities.

Article six establishes general outline for a public participation procedure leaving it to the discretion of the parties to develop detailed provisions in their national legislation in accordance with national administrative procedures, custom and practice.

While public participation procedure applies to preparation of plans and programmes relating to the environment, preparation of policies is left to the discretion of the signatory parties. Furthermore, reference to public participation in the making of legislation, regulations and other binding rules has been included in the text in a recommendatory form and strictly limited to the executive stage while excluding the preparation of legal acts in the parliament.

2.6       Access to justice

Within the framework of its national legislation each party has to ensure that any person who considers that his or her request for information has been ignored, wrongfully refused, inadequately answered or not dealt with in accordance to the Convention, has access to a review procedure before a court of law or another independent and impartial body established by law.

As a preliminary step and with a view to reducing costs, signatory parties are required to establish by law a review procedure by an independent and impartial body other than a court of law.

Members of the public are granted access to administrative or judicial procedures to challenge acts and omissions by either private sector or public authorities, which contravene provisions of national laws relating to the environment.

Review procedures should be fair, equitable, timely and not prohibitively expensive. Court decisions and decisions made by independent bodies have to be recorded in writing and publicly accessible. Furthermore, signatory parties are recommended to establish appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.

3.       Process of signing and ratification

Thirty-nine countries plus the European Union have signed the Århus Convention to date. At the first meeting of the Signatories to the Convention, which took place in Chisinau, Republic of Moldova, in April 1999, the delegations provided information of the progress made by their respective Governments to ratify or accede to the Convention.

To successfully fulfil its role, the Convention needs to enter into force without delay and be applied correctly. To this end a goal was set for the Convention to enter into force by the year 2000.

Austria, the Czech Republic, Estonia, Georgia, Kazakhstan, Lithuania, Norway, Romania, the former Yugoslav Republic of Macedonia5 and Ukraine would finalise their processes of ratification by the end of 1999 or the beginning of 2000. Belgium, Denmark, Finland, France, Italy, Latvia, Poland, the Netherlands, Slovenia, Spain, Sweden and the United Kingdom would finalise their processes of ratification by the end of 2000. The Governments of Belarus, Germany, Hungary, the Russian Federation, Slovakia, Switzerland and Uzbekistan were also taking steps to ratify or accede to the Convention.

The European Commission adopted a strategy to ratify the Århus Convention. Due to undertaking a necessary review of existing EU legislation and developing a new code of conduct for the administration itself, the process of ratification will be longer than that of the 15 Member States of the European Union which all aim to ratify the Convention by end of the year 2000.

A compliance mechanism for the Århus Convention remains to be developed drawing experience from compliance mechanisms for other international environmental and human rights instruments.

The Government of Denmark in co-operation with the Regional Environmental Centre (REC) will develop the "Århus Convention Implementation Guide" in order to assist the Signatory Parties throughout the process of ratification and implementation in practice.

4.       Challenges to improve the Århus Convention

Although the Århus Convention provides an excellent framework, it is left to the discretion of the Signatory Parties to establish or maintain more progressive standards than those laid down in the Convention and to put in place all legal, administrative, and other instruments to ensure that the Convention is fully and effectively implemented.

To this end, National Parliaments should not only adopt amendments to existing laws or draft new pieces of legislation in order to comply with the provisions of the Convention, but also lead by example when it comes to democratic practice and transparency. The Parliaments should therefore apply the principles of the Convention in their daily work, namely providing access to information and transparent procedures involving public participation in the process of drafting legislation. Many National Parliaments already apply relatively transparent procedures of consultation with different stakeholders concerned. However, there is no explicit obligation to this regard in the text of the Convention itself.

There is a serious concern for misuse of the exemption from access to information requirements on the grounds of commercial confidentiality and broad exemptions which public authorities may invoke to withhold information. A more precise definition of the exemptions will be necessary at national levels to avoid any misuse.

Annex I to the Convention lists the activities to be subject to public participation procedures. It involves activities in energy sector, mineral industry, chemical industry, waste management, waste water treatment, infrastructure, etc. However, the list is not exhaustive and would require regular updating. A co-ordination should be envisaged between the Signatory Parties.

Public participation requirements should with time extend to cover procedures for developing policies and programmes allowing the public to actively participate in the early stages of decision-making processes.

5.       Implementation

Ratification cannot be considered as an end in itself but rather as an important step towards effectively implementing the principles of the Convention in practice.

For the Convention to succeed, all actors need to take concerted action: Governments, international organisations and institutions, including donor institutions, the private sector, the media and non-governmental organisations, which all need to be involved in activities under the Convention. There is a need to share experience on practical steps to be taken to implement the Convention such as harmonising national legislation with the provisions, setting up a national institutional system for the implementation, consideration of economic and financial implications as well as providing training and technical assistance, especially in the newly independent States and in the countries of Central and Eastern Europe.

5.1       Implementation at national level

National Parliaments will be drafting amendments and/or proposing new legislative acts with a view to complying with the provisions of the Convention. Existing practice for public participation, access to information and access to courts as well as national legislation concerning the environment vary considerably from country to country. Consequently, the process of ratification in each Signatory State should be tailored to suit its specific context in order to provide realistic ground for effective implementation.

Many countries have already established systems for public participation in the context of environmental impact assessment procedures (EIA). This experience can be of great value when developing public participation procedures covered by the Convention.

Each Signatory State will have to review existing environmental legislation in the light of the provisions, define precise roles of different administrative levels (national, regional and local), obligations incurring to the private sector (i.e. operators), provide assistance for access to courts and review procedures and facilitate involvement of the non-governmental sector in providing awareness raising and assistance to general public. This is a complex process of change, which will require new attitudes and training of administrative and judiciary staff concerned, harmonised methodologies and financial investments for providing information and environmental data easily accessible to the public through electronic and other media. Therefore examples of good practice are to be shared between Signatory States for mutual benefit. Technical and financial assistance will be especially needed in countries of Central and Eastern Europe whose civil society has to be strengthened.

5.2       Role of international organisations

5.2.1       United Nations Economic Commission for Europe (UN-ECE)

The Secretariat of the UN-ECE is facilitating the process of co-operation between the Parties to the Århus Convention. The Delegations that took part in the Chisinau meeting in Moldova in April 1999, expressed the need to :

a) establish a list of focal points for the Convention with a possibility of using an existing information network to this end;

b) put emphasis on promoting the implementation of the Convention at local level;

c) to examine links between the Århus Convention and other UN-ECE Conventions (Convention on the Transboundary Effects of Industrial Accidents (1992), Convention on Environmental Impact Assessement in a Transboundary Context (1991), Convention on Long-range Transboundary Air Pollution (1979) and Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992);

d) address the specific needs of countries in transition, which required not only a legal framework but also resources to increase capacity in terms of manpower and technical infrastructure, in particular to create information centres and provide a sufficient flow of information within the Government;

e) provide training for governmental officials and the judiciary;

f) provide assistance in the form of handbooks and guides on implementation.

5.2.2.       European Union (EU)

EU institutions are also covered by the definition of public authorities alongside national public authorities. Environmental legislation at EU level has developed rapidly in the last two decades and will continue to bear significance on implementation of environmental law at national level, especially in the Accession countries of Central and Eastern Europe. The participation of the EU as a Signatory Party to the Århus Convention is therefore crucial.

In accordance with its regular practice, the European Union will only be able to ratify the Convention once the relevant EU legislation has been aligned with its provisions. Concerning the first pillar of the Convention, public access to environmental information, the provisions of the Convention will be implemented through the Council Directive 90/313/EEC on the freedom of access to information and Article 255 of the Amsterdam Treaty. Concerning the second pillar, public participation in environmental decision-making, the Commission services are in the process of examining numerous environmental acts in detail to ascertain whether amendments need to be made.

5.2.3       European Environment Agency (EEA)

5.2.4.       Council of Europe

Recently, the Council of Europe adopted two important legal instruments concerning criminal and corporate environmental liability, access to information and access to justice : the Convention on civil liability for damage resulting from activities dangerous to the environment (Lugano, 1993) and the Convention on the protection of the environment through criminal law (Strasbourg, 1998). A link is to be drawn between those legal instruments and the provisions of the Århus Convention. Furthermore, the principles of the Århus Convention should be taken into account in the work of the Council of Europe itself, in particular, concerning preparation of legal instruments, policies and programmes, where these may have consequences for the environment.

Moreover, long period of monitoring compliance with the European Convention of Human Rights is a valuable experience to bring to the process of establishing compliance mechanism for the Århus Convention.

Through continuous concerted action with other International Organisations, namely the United Nations Economic Commission for Europe (UN-ECE) and the European Union, the Council of Europe should consider what measures may usefully be taken in the context of its 41 Member States to promote the Århus Convention’s ratification and implementation in practice.

5.3       Role of international NGO coalition

A European coalition of NGOs has been regularly participating with the Governments in the process of drafting and negotiating the Århus Convention. This co-operation with the intergovernmental side will continue during the process of ratification and later, once the Convention enters into force. The non-governmental sector is directly concerned by the provisions of the Convention and has extremely valuable practical experience in all three pillars of the Convention : access to environmental information, public participation in environmental decision-making and access to justice.

NGO coalition will be preparing a paper on good practices in public participation in the preparation of programmes, plans, policies and legislation and proposed to draft a NGO advocacy manual as a complementary tool to the implementation guide developed by the government of Denmark and the Regional Environmental Centre (REC).

6.       Conclusions

Over fifty years the Council of Europe has been endeavouring to promote and secure pluralistic democracy, the rule of law and respect for human rights in Europe. In response to the new challenges of enlargement to the countries of Central and Eastern Europe, the Organisation, and the Parliamentary Assembly in particular, have been increasing its support capacities to assist the new member and applicant States in fields such as democratic elections, constitutional and legal reforms, establishment of independent judiciary and development of local self-government. Moreover, the Council of Europe conventions make an important contribution to a wide range of European legal instruments concerning environmental protection, human rights and bioethics and as such are directly pertinent to the implementation of the Århus Convention itself.

The Rapporteur is therefore convinced of the important role that the Council of Europe and the Parliamentary Assembly should play in the process of ratification and implementation of the Århus Convention and recommends that the Parliamentary Assembly urges that the Member State Governments of the Council of Europe sign and ratify the Convention as soon as possible.

Furthermore, the Rapporteur considers that the Council of Europe and the Parliamentary Assembly should assist Member States and respective National Parliaments in establishing or maintaining more progressive standards than those laid down in the Convention, as well as putting in place all legal, administrative, and other instruments to ensure that the Convention is fully and effectively implemented.

Reporting committee: Committee on the Environment, Regional Planning and Local Authorities

Budgetary implications for the Assembly: none

Reference to committee : Doc. 8087 and Reference No. 2278 of 26 May 1998

Draft recommendation adopted by the committee on 30-31 August 1999

Members of the committee : Mr Akçali (Chairman), Mr Besostri (Vice-Chairman), MM. Hoeffel (Alternate : Lengagne), Haraldsson (Vice-Chairmen), Andreoli, Assis Miranda, Berlusconi (Alternate : Risari), Bockel, Briane, Browne (Alternate : Gregory), Sir Sydney Chapman, MM. Ciobanu (Alternate : Debono Grech), Ciupaila, Cox, Diana, Mrs Dromberg, MM Duivesteijn, Frunda, Mrs Granlund, Mrs Hornikova, MM. Kalkan, Khukhunaishvili, Kieres, Kittis, Korakas (Alternate: Micheloyiannis), Kurucsai, Kurykin, Lachat, Mrs Langthaler, MM. Linzer, Luczak (Alternate : Gibula), Martinez Casan, Melo, Mezeckis, Mrs Mikaelsson, MM. Minkov (Alternate : Ivanov), Molnar (Alternate : Lotz), Mota Amaral, Mozetic, Müller, Mrs Oleinik, MM. Prokes, Prosser (Alternate : O'Hara), Rados, Rakhansky (Alternate : Strizhko), Recoder (Alternate : Gonzalez de Txabarri), Rise, Ruffy, Schutz, Mrs Sehnalova, Mrs Severinsen, MM. Skoularikis, Sobyanin, Staes, Steolea, Tahiri, Mrs Terpstra, MM. Theis, Toshev, Truu, Valkeniers, Vella, Vishnyakov, Zierer.

NB. The names of those members present at the meeting are printed in italics.

Secretaries of the committee : Mrs Cagnolati, Mr Chevtchenko, Mrs Karanjac.


1 Albania, Armenia, Austria, Belarus, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Hungary, Greece, Iceland, Ireland, Italy, Kazakhstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, Norway, Poland, Portugal, Moldova, Romania, Slovenia, Spain, Sweden, Switzerland, Ukraine, United Kingdom

2 Albania, Armenia, Austria, Belarus, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Hungary, Greece, Iceland, Ireland, Italy, Kazakhstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, Norway, Poland, Portugal, Moldova, Romania, Slovenia, Spain, Sweden, Switzerland, Ukraine, United Kingdom

3 United Nations Economic Commission for Europe

4 EU Directive 90/313/EEC on the freedom of access to information, currently under revision.

5 The former Yugoslav Republic of Macedonia submitted a Declaration in lieu of signing the Convention of 25 June 1998.

6 EEA co-operates with 15 Member States of the European Union and a number of other European countries.