Jerzy Jendroska
Part 2
a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically
b) modified organisms, and the interaction among these elements;
c) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making;
d) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above;".
According to the Convention, any natural or legal person may request, without an interest having to be stated, the environmental information, that is held by any public authority. Public authorities, meaning basically government at national, regional and local level (with an exemption of bodies acting in a judicial or legislative capacity) shall provide and make available such environmental information. The Convention applies accordingly to natural and legal persons (organizations and non-administrative bodies) with public responsibilities for the environment.
In accordance with Article 4 para 3 of the Convention a request for information may be refused if:
a) The public authority to which the request is addressed does not hold the environmental information requested;
b) The request is manifestly unreasonable or formulated in too general a manner: or
c) The request concerns material in the course of completion or concerns internal communications of public authorities, where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.
A request may also be refused (para 4) if the disclosure would adversely affect:
a) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law;
b) international relations, national defence or public security;
c) the course of justice, the ability of a 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 and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest. 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 in national law;
g) the interest of a third party which has supplied the information requested without that party being under or capable of being put under a legal obligation to do so, and where that party does not consent to the release of the material; or
h) the environment to which the information relates, such as the breeding sites of rare species.
The aforementioned grounds for refusal shall be interpreted in a restrictive way , taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.
Where only part of the information requested falls within one of the exempt categories, the reminder of the information should be separated out and supplied to the person making the request.
Public authorities should respond to a requesting person at the latest within one months unless the volume and complexity of the information justify extension of this period to up to two months after the request. The written refusal to comply with a request for information shall include reasons for the refusal and information on access to review procedure under Article 9. Public authorities are allowed to make a reasonable charge for supplying information.
Article 5 attempts to address somewhat neglected issue of duties of authorities to actively collect and disseminate environmental information, in particular by identifying various forms of doing so. For example, it requires authorities to regularly publish up-to-date information on the state of the environment, e.g. in a written report or periodicals. It also requires that environmental information becomes progressively available in electronic databases which are easily accessible to the public through public telecommunications network.
In article 5 para 9 the Convention introduces the concept of PRTR (though without mentioning this term) by requiring Parties to taking steps to progressively establish a coherent, nationwide systems of pollution inventories.
Public participation in environmental decision-making
The Convention follows the hitherto manner in addressing the issue of public participation by distinguishing between public participation in concrete decision-making and pubic participation in policy- and rule-making.
As far as concrete decision-making is concerned, the Convention establishes in Article 6 quite an elaborated set of procedural rules to be followed by environmental authorities while taking decisions to authorize certain activities, categories of which are listed in the Annex to theConvention.
The Annex is generally based on list of activities subjected to EIA requirement under Espoo Convention (combined with list of activities subject to Integrated Pollution Prevention and Control Directive), though the Convention requires also public participation in permitting deliberate releas of Genetically Modified Organisms.
As far as public participation in policy- and rule-making is concerned the extent of relevant obligations resulted from the Convention is rather limited, in particular by living to the Parties to the Convention to determine the scope of the public to be consulted.
Access to environmental justice
The scope of this pillar of the Convention addresses basically two issues:
The second issue, of primary importance for public involvement in environmental enforcement, was hotly debated. The outcome of the debate may be found in para 3 which reads:
"In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment". In a way, this provision may well be considered as a kind of instrument to enforce the right to environment invoked in Article 1 of the Convention.
It is worth mentioning that the Convention requires also, in para 5 that Parties ensures that information is provided to the public about review procedures and shall consider establishment of appropriate assistance mechanism to remove financial and other barriers to access to justice.
5. STATUS OF THE CONVENTION
6. EU AND THE AARHUS CONVENTION
The Commission, on behalf of EU, signed the Convention in Aarhus and has undertaken activities aiming at making its legal framework compatible with the Aarhus requirements. Detailed proposal concerning amendments in the 90/313 directive has been published (COM2000/402 final, 2000/0169 COD). Besides, the Commission proposed directions of changes needed in some other directives (including EIA Directicve, IPPC Directive and UWWT Directive). Much more controversial and difficult appear however the issue of subjecting EU institutions themselves to the Aarhus requirements. The problem is not only how to do it (there are even opinions that this may need some changes in the Treaty itself) but also the scope of institutions to be covered (for example � is EIB covered by this definition?)
7. CONCLUSIONS
The negotiations on the Convention have proved that all countries in Europe have made a huge step towards accepting the idea of open government and participatory democracy, though there are still different views as to the ways of achieving these concepts. It is clear also that contrary to initial expectations of some participants of the negotiations, the Convention is not about "Eastern Europe" keeping up with the "Western Europe" in relation to access to information and public participation, because in many instances some of the "Eastern" countries are more advanced than those in the "West". Altogether the Convention will bring progress for all European countries and contribute to getting entire Europe keeping up with best "world" standards and practices in relation to access to information and public participation. This, despite of the fact that the Convention does not mention specifically public participation in monitoring compliance activities, will no doubt be beneficial to improving effectiveness of monitoring compliance and enforcement of environmental laws and thus to improving environmental conditions in Europe.
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