Supplementary 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 ..26 April.. 2001
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This Supplementary Explanatory Memorandum offers advice additional to that submitted in the Explanatory Memorandum 10003/00 & 10004/00 of 6 October 2000. The House of Commons European Scrutiny Committee considered that Explanatory Memorandum to be legally and politically important on 25 October 2000 (Report 27 of Session 99/2000). The Committee did not clear the Explanatory Memorandum on the basis of the proposal nor the Commission's report citing in particular concerns over the extent to which the proposal would apply to the private sector and the likely costs. The House of Lords Select Committee on the European Union referred the Explanatory Memorandum to its Sub-Committee D on 3 October 2000 (1043rd sift), where it is under consideration.
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This supplementary EM updates the Committee on the progress of the dossier and of our success in remedying these concerns. It also presents to the Committee a full Regulatory Impact Assessment reflecting the additional information on the likely costs ascertained as part of the public consultation exercise at the end of 2000.
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The original Explanatory Memorandum concerned two documents. The first is a Report from the European Commission on the experience gained in the application of EC Directive 90/313/EEC on the freedom of access to information on the environment (COM (2000) 400 Final). The second document is a proposal for a new Directive which will provide enhanced public rights of access to information on the environment (COM (2000) 402 Final - adopted 29 June 2000). The proposed Directive would will replace Directive 90/313/EEC which has been fully transposed in the UK and Gibraltar.
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The Commission proposes to replace Directive 90/313/EEC because:
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the Report of the operation of the Directive highlights short-comings in the current procedures;
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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.
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Many of the short-comings highlighted in the Commission's review are resolved by additional requirements set out in the Aarhus Convention. Similarly, the Aarhus Convention takes account of advances in the use of information technology made since the original 1990 Directive.
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To the extent that the Commission's proposal seeks to remedy the shortcomings with the current Directive and takes on board the main elements of the Aarhus Convention, the Scrutiny Committee welcomed the proposal.
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The Secretary of State for the Environment, Transport and the Regions has lead responsibility for access to information on the environment with respect to EU negotiations. That responsibility will be exercised in consultation with the Devolved Administrations. Since the provisions will apply to all Government Departments, all Ministers, including the Secretaries of State for Scotland, Wales and Northern Ireland, also have an interest.
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Implementation of this Directive is a devolved function. The Secretary of State for the Environment, Transport and the Regions will be responsible for policy implementation in England. In Scotland, Wales and Northern Ireland, 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.
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As in the original EM of 6 October 2000.
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As in the original EM of 6 October 2000.
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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.
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However, the Commission's proposal has a number of implications. The most important are the degree to which the proposal will apply to the private sector and the likely costs generated.
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At present, under the 1990 Directive, the access regime applies to certain private sector bodies where those bodies have public responsibilities for the environment and are under the control of a public body. The Aarhus Convention does not alter this situation with regard to private sector bodies. However, the European Commission's proposal uses a different definition of 'public authority' which does not follow that used in the Convention.
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This may significantly broaden the scope of the regime, applying it to private sector bodies with no environmental duties or responsibilities for the environment. The extent of the definition is unclear but it could apply to the gas, waste disposal, telecommunications, water, electricity, transport, airline, shipping, freight and construction sectors.
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During negotiations in Council, Member States have proposed reverting to the Aarhus Convention's definition of 'public authority'. The European Parliament has also proposed to revert to the Aarhus text on this point, a proposal supported by the European Commission. The UK's concerns regarding the Commission's original proposal for this definition have therefore been met.
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In addition to the resource demands created by extending the proposal to many new bodies for the first time (para 12 above), further demands were envisaged in the original Explanatory Memorandum from two specific elements in the Commission's proposal. These were the prohibition on making charges in advance of supply of the information sought and the obligation to digitise and disseminate archive environmental information.
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Both of these concerns have been met in the negotiations in Council and the Common Position text is unlikely to create the significant resource demands envisaged. The European Parliament has not proposed similar amendments. The UK will continue to work to ensure that the supply of information can be conditional on the payment of the fee in the few cases where such a fee is proposed. The UK will also seek to ensure that the obligations under the proactive dissemination of environmental information elements are reasonable and do not divert resources of other key functions of the bodies concerned.
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A Regulatory Impact Assessment has been prepared (attached at 'A').
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A public consultation exercise was undertaken at the end of 2000. The comments by and large supported the views proposed by the Government. Information on the financial implications of the proposal was invited in order to complete the Partial Regulatory Impact Appraisal submitted with the original Explanatory Memorandum. However, only limited information was received. This has been used to prepare the revised Regulatory Impact Appraisal at 'A'.
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The European Parliament completed its first reading on Wednesday 14 March and the Presidency hopes to achieve Common Position at the June Council meeting (June 7/8).
- A new Explanatory Memorandum will be prepared once the European Commission has issued their revised proposal in the summer.
Scrutiny history
Subject matter
Ministerial responsibility
Legal and procedural issues
Subsidiarity
Policy implications
The definition of 'Public Authorities'
Financial implications
Consultation
Timetable
[Signed by the Minister]
Michael Meacher
Minister for the Environment
Department of the Environment, Transport and the Regions
Page last modified: 18 February 2005