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Explanatory Memorandum on European Community Legislation

Proposals for a Revised Regime

10003/00
COM(2000) 400 final

10004/00
COM(2000) 402 final

 

Report from the Commission to the Council and the European Parliament on the experience gained in the application of Directive 90/313/EEC of 7 June 1990, on freedom of access to information on the environment

Proposal for a Directive of the European Parliament and of the Council on public access to environmental information

Submitted by the Department of the Environment, Transport and the Regions
on 6 October 2000

    Subject matter

  1. This Explanatory Memorandum concerns two documents. The first is a proposal for a Directive which will provide enhanced public rights of access to information on the environment (COM (2000) 402 Final). It was adopted by the Commission on 29 June. The proposal will replace EC Directive 90/313/EEC on the freedom of access to information on the environment which has been fully transposed in the UK and Gibraltar. The second is the Report from the Commission on experience gained in the application of 90/313/EEC (COM (2000) 400 Final).

  2. The Commission proposes to replace Directive 90/313/EEC because:

    • the Report of the operation of the Directive (Document COM (2000) (400 Final) following a review as required by Article 8, highlights short-comings in the current procedure

    • the European Community signed the Aarhus Convention (UNECE Convention on access to information, public participation in decision-making and access to justice in environmental matters) in 1998. The Commission sees a need to align existing EC legislation on access to environmental information with the access to environmental information provisions of the Convention; and

    • the Commission is seeking to reflect the use of the latest technology in disseminating environmental information.

  3. Many of the short-comings highlighted in the Commission's review are resolved by additional requirements set out in the Convention. Similarly, the Convention takes account of advances in the use of information technology made since the original 1990 Directive.

    4. Ministerial responsibility

  4. Within the UK Government the Secretary of State for the Environment, Transport and the Regions has lead responsibility for access to information on the environment including EU negotiations. Since the provisions in the national laws implementing the Directive would apply to all Government Departments, all Ministers will have a responsibility to ensure that these provisions are applied correctly.

  5. Implementation of this Directive is a devolved function. In Scotland, Wales and Northern Ireland, environmental policy and implementation with respect to devolved functions is the responsibility of the Scottish Ministers, National Assembly of Wales Assembly Secretaries, and the Northern Ireland Legislative Assembly Minister for the Department of the Environment.

    6. Legal and Procedural Issues

    Legal Basis

  6. Article 175(1) of the Treaty

    7. European Parliament Procedure

  7. Co-decision

    8. Voting Procedure

  8. Qualified majority voting

    9. Impact on United Kingdom Law

  9. The existing Directive, 90/313/EEC, has been fully transposed into UK law. The regime is set out in the Environmental Information Regulations 1992 (SI 1992 No. 3240) and the Environmental Information Regulations (Northern Ireland) 1993 (SR 1993 No. 45), as amended.

  10. The UK is committed to ratifying the Aarhus Convention as soon as possible. If the UK were to wait for action at the EC level to be in a position to ratify, this might not be before 2003. Therefore, the UK is pressing ahead. A power has been taken in the Freedom of Information Bill to allow the access to information provisions of the Convention to be given effect in England, Northern Ireland and Wales much sooner (shortly after Royal Assent of the Bill). It is anticipated that comparable powers will be taken in Scotland in due course.

  11. To the degree that the final Directive may go further than the Aarhus Convention, this revised regime would need to be amended again under section 2(2) of the European Communities Act 1972.

    12. Gibraltar

  12. This proposal would apply to Gibraltar. The current implementation in Gibraltar (Public Health (Freedom of Access to Information on the Environment) Rule 1992 (Legal Notice 143 of 1992)) would need to be amended.

    13. Application to the European Economic Area

  13. The proposal applies to the EEA.

    14. Subsidiarity

  14. We do not consider that there are any subsidiarity issues. There is already Community legislation providing access to environmental information which has been widely accepted and has not been challenged on subsidiarity grounds. The Commission's proposal amends that existing regime to bring it into line with the Aarhus Convention which is broadly consistent with the existing EC regime.

    15. Policy implications

  15. The UK strongly supports the objectives of the Aarhus Convention. The three areas in which it provides additional rights (access to environmental information public participation and access to justice) will allow the public to be better informed and more involved in decision-making. More broadly based discussion can lead to better decisions and so make an important contribution to achieving sustainable development. As mentioned above, the UK intends to ratify the Convention as quickly as possible.

  16. However, there are a number of implications arising from the Commission's proposal and the specific way in which they seek to give effect to the Convention's obligations. These are discussed below.

    17. The proposal goes beyond what is required by the Aarhus Convention

  17. The Commission's proposals go beyond what is required to ratify the Aarhus Convention, based on the 3 reasons given (see 'Subject Matter'). The justification for these extensions are set out in the recent document COM (2000) 400 Final which has only recently been prepared by the Commission. The Government will test the Commission's reasoning for the additional steps proposed by the Commission during the course of the negotiations.

    18. The proposal removes the option of complying with Aarhus administratively

  18. Article 5 of the Convention sets out a regime for pro-active dissemination of information. The Commission proposes to incorporate these elements into the proposed Directive. This would remove Member State's ability to give effect to these obligations by administrative means and would limit their flexibility.

    19. Proposal limits Member State's discretion available under Aarhus

  19. The Commission proposes in a number of places to remove the discretion afforded by the Convention to Member States. For example, the Commission proposes not to use the words 'progressively', 'as appropriate' and 'provided such information is already available in electronic form' found in Article 5(3) of the Convention in relation to the proactive dissemination of environmental information.

    20. Specific points

  20. The Commission proposes:

    • a definition of 'public authorities' which does not follow the definition used in the Convention. This is a new issue and one which may significantly broaden the scope of the regime bringing private sector firms within the scope of this legislation for the first time. It will need careful scrutiny and work is continuing on identifying the range of private bodies to which it might apply.

    • to require that 'public authorities' make all environmental information that they hold (even archive material) available by electronic means.

    • that public authorities are to be prevented from collecting money in advance for the supply of information. The Convention expressly allows for charging in advance and it is common UK practice to do so. The financial implications are being considered.

    Consultation

  21. A public consultation will be undertaken on the Commission's proposal this Autumn. Comments will be considered and a final Regulatory Impact Assessment submitted to Parliament in due course.

    22. Financial Implications

  22. The Commission's proposal is weak on the financial implications. No fiche d'impact has been prepared.

  23. The explanatory memorandum for the Aarhus Convention (Cm 4736) records that "it is not anticipated that there will be significant additional costs arising from ratification of the Convention. In particular, the revised access to environmental information regime applies to public bodies and private bodies that have public responsibilities or functions or provide public services. In practice, this is the same range of bodies as for the current regime. Therefore, there is no additional cost to business through the revisions in this area."

  24. However, the Commission's proposals go beyond the Convention's obligations, convert qualified obligations into requirements and extend the range of bodies to which the regime would apply. Collectively, these changes could involve financial impacts. The partial Regulatory Impact Assessment has been prepared (submitted with this EM and attached as Annex A) which will form part of the public consultation exercise in order to collect estimates of the likely impact.

    25. Timetable

  25. The European Parliament is expected to adopt its first reading opinion in early December (11-15 December).

  26. An orientation debate in Environment Council, Brussels, has been scheduled for the December meeting (18-19 December).

[SIGNED BY THE MINISTER]

Michael Meacher
Minister for the Environment

 

 

 

 

Page last modified: 18 February 2005

Department for Environment, Food and Rural Affairs