Public awarded greater say over EU environmental law

Public participation in environmental decision-making is to be strengthened after EU Ministers agreed to the principles of the Aarhus Convention. But they stopped short of allowing NGOs the right to drag member states to court.

The EU Council of Minister on 18 July gave its formal green light to a last-minute deal with the European Parliament on the Aarhus Convention, giving the public greater access to decisions on environmental matters.

In applying the new Regulation, EU institutions will from now on be required to ensure that “environmental information is progressively made available and disseminated to the public”. They should also “take into account the outcome of public participation when deciding on a plan or programme relating to the environment”. “Environmental information” to be disclosed under the new Regulation includes:

  • Reports on the state of the environment (air, water, soil, etc.)
  • Legislative measures, plans and programmes affecting these, including those under preparation
  • Cost-benefit analyses and environmental impact studies

Some exceptions are foreseen allowing EU institutions to veto demands in cases where the information could threaten “commercial interests” such as confidentiality agreements regarding EU financial, monetary or economic policy. However, grounds for refusal are to be interpreted “in a restrictive way, taking into account the public interest served by disclosure,” says the agreed text.

The incorporation of the Aarhus Convention within EU rule books led to a controversy over access to justice for environmental NGOs. Under the initial proposal tabled by the Commission, NGOs would have been allowed to seek review of contested environmental legislation and, if they feel they have a case, ask for the verdict of EU judges in Luxemburg.

But the idea ran into to some practical hurdles such as the high cost usually incurred by legal action, leading the Greens in the European Parliament to call for some kind of financial assistance to help them bear the cost of action.

Others in business circles lobbied against the provision, saying it could threaten the EU's economic competitiveness. Chemical Industry Federation CEFIC said it would have endangered "the right balance between a desirable involvement of the public in environmental matters and the safeguarding of proper administration of justice".

Under the agreed text, however, access to justice is practically restricted. In a statement, Belgium, which was the only EU country to abstain in the vote, said the provisions on access to justice "are drafted so restrictively [that they] do not allow members of the public broad access to the legal remedies which the institutions are, however, obliged to guarantee in accordance with the Aarhus Convention".

"The Council chose not to accept the Commission's elegant proposal to open the door to the European Court of Justice, which has remained firmly closed to environmental NGOs," said the European Environmental Bureau (EEB), a federation of ecological NGOs. "In the absence of a sound arrangement for access to justice, the EU's Aarhus Regulation appears to fall short of fully implementing the Convention," said EEB Secretary General John Hontelez.

The Aarhus Convention was concluded in 1998 by the United Nations Economic Commission for Europe. It foresees access to information, public participation in decision making and access to justice on environmental matters. The EU ratified the Aarhus Convention on 17 February 2005.

  • The Regulation will apply directly in all member states after it is published in the Official Journal of the EU

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