Select Committee on European Scrutiny Thirty-Seventh Report






COM(00) 400



Commission Report on the experience gained in the application of Council Directive 90/313/EEC on the freedom of access to information on the environment.




COM(00) 402


Draft Directive on public access to environmental information.





Legal base:

(a) —

(b) Article 175(1) EC; co-decision; qualified majority voting



Environment, Food and Rural Affairs

Basis of consideration:

Second SEM of 10 July 2001

Previous Committee Report:

HC 23-xxvii (1999-2000), paragraph 9 (25 October 2000) and HC 152-i (2001-02), paragraph 35 (18 July 2001)

To be discussed in Council:

See paragraph 9.7 below

Committee's assessment:

Politically important

Committee's decision:

Cleared (decision reported on 18 July 2001)



    1. Current Community provisions require Member States to ensure that public authorities make available on request information relating to the environment (for which a reasonable charge may be made). However, such a request may be refused in certain circumstances[18], though the reasons for a refusal must be given, and may be subject to a judicial or administrative review. In addition, Member States themselves have an obligation to provide general information to the public on the state of the environment by such means as periodic reports.
    2. In June 2000, the Commission reported (document (a)) on the way in which the measures had operated to date, and it also proposed (document (b)), a number of changes in the light of experience, and of the subsequent signing by the Community and the Member States in 1998 of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention).
    3. It identified the main problems as too restrictive an interpretation of what constitutes information relating to the environment; uncertainty over the definitions of public authority, and of bodies with public responsibilities for the environment; a refusal to provide information even when it is not covered by one of the permitted exceptions; slowness in responding to requests, or failure to do so at all; and the levying of unreasonable charges. These were also seen by the Commission as areas in which the Aarhus Convention provided a "clear advance", and it described this as a "timely opportunity" to align Community law with the relevant provisions of the Convention.
    4. In an Explanatory Memorandum of 6 October 2000, the Minister for the Environment (Mr Meacher) said that the UK strongly supported the objectives of the Aarhus Convention, and was committed to ratifying it as soon as possible. However, he added that the proposal in some ways went beyond the Convention, that it removed the option of complying with the Convention administratively, thereby limiting Member States' flexibility, and that it limited Member States' discretion in some important respects. In particular, the definition of "public authorities" suggested by the Commission extended the scope for the first time to private-sector firms supplying services still provided by the public sector in many Member States; a new obligation on public authorities to make information available by electronic means would extend to archive material; and the proposal would run counter to a provision in the Aarhus Convention which expressly allows charging in advance (in line with common UK practice).
    5. The Minister subsequently told us in his Supplementary Explanatory Memorandum of 26 April 2001 that, as a result of discussions in Brussels, the UK's main concerns had been addressed. He also said it seemed clear that only the Commission's original proposal — as opposed to the amended text now before the Council — would create significant new burdens. In view of this, we cleared the two documents on 18 July 2001.
    6. Second Supplementary Explanatory Memorandum of 10 July 2002

    7. In his Second Supplementary Explanatory Memorandum of 10 July 2002, the Minister draws attention to two recent developments — the amendments to the Council's Common Position proposed by the European Parliament at its second reading on 30 May 2002, and the reaction of the Council (and the Commission) to these.
    8. According to the Minister, many of these latest amendments were rejected by the Council following the Parliament's first reading, and go beyond the requirements of the Aarhus Convention. The Council intends, therefore, to reject most of them, a course which the UK strongly supports (and which is also broadly in line with the Commission's response). The Minister says that an informal conciliation process is under way, and that formal meetings are likely to begin in September. He is confident that, whilst it may be necessary to give some ground, the final Directive will not give rise to significant additional costs, in which respect he sees the two most difficult amendments favoured by the European Parliament as being:

    • the restriction of any "reasonable charge" for providing information to marginal costs, which he says would create particular problems for the UK, where many agencies provide customised, value-added information services;

    • a reduction from one month to 15 working days in the time allowed to respond to requests.


    1. We are grateful to the Minister for this further information, and have noted the position, including the likelihood of formal conciliation proceedings commencing in September.


18  Where it would affect such areas as the confidentiality of public proceedings, public security, commercial confidentiality, personal data, and matters which are sub judiceBack

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