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Європейське право навколишнього середовища

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Having regard to the opinion of the Committee of the Regions12,

Acting in accordance with the procedure laid down in Article 251 of the Treaty13,

Whereas:

1   Community legislation in the field of the environment aims to contribute to preserving, protecting and improving the quality of the environment and protecting human health.

2      The Sixth Community Environment Action Programme14 stresses the importance of providing adequate environmental information and effective opportunities for public participation in environmental decision-making, thereby increasing accountability and transparency of decision-making and contributing to public awareness and support for the decisions taken. It furthermore encourages, as did its predecessors15, more effective implementation and application of the Community legislation on environmental protection, including the enforcement of Community rules and taking action against breaches of Community environmental legislation.

3   On 25 June 1998 the European Community signed the UN/ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (hereinafter “the Arhus Convention”). Provisions of Community law should be consistent with that Convention with a view to its conclusion by the European Community.

4   To contribute to the implementation of the Convention, the Community has already adopted two directives16 and a third one has been proposed17. Provision should be made to apply the requirements of the Convention to Community institutions and bodies.

5   It is appropriate to deal with the three pillars of the Arhus Convention, that are access to information, public participation in decision-making and access to justice in environmental matters, in one piece of legislation and to lay down common provisions regarding objectives and definitions. This contributes to rationalising legislation and increased transparency of the implementation measures taken with regard to the Community level.

6   As a general principle, the rights guaranteed by the three pillars of the Arhus

12  OJ C [...] [...], p.[...]

13  OJ C [...] [...], p.[...]

14  Decision 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme. OJ L 242, 10.9.2002, p.1

15  Fourth Community Action Programme for the Environment, OJ C 328, 7.12.1987, p.1. Fifth Community Action Programme for the Environment, OJ C 138, 17.9.1993, p.1

16  Directive 2003/4/EC of the European Parliament and of the Council of 28 January on public access to environmental information and repealing Council Directive 90/313/ EEC, OJ L 41, 14.2.2003, p. 26 and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending, with regard to public participation and access to justice, Council Directives 85/337/EEC and 96/61/EC. OJ L 156, 25.6.2003, p. 17.

17  Proposal for a Directive on access to justice in environmental matters COM(2003) 624 final

   

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Convention shall be accessible to the public without discrimination as to citizenship, nationality or domicile.

7   Article 2(2) of the Arhus Convention defines public authorities in a broad way, the basic concept being that wherever public authority is exercised, there should be rights for individuals and their organisations. It is hence necessary that the Community institutions and bodies covered by the Regulation be defined in the same broad and functional way. In line with the Arhus Convention, Community bodies and institutions are to be excluded when and to the extent they act in a judicial or legislative capacity.

8   The definition of environmental information encompasses information in any form on the state of the environment. This definition, which has been aligned to the definition adopted for Directive 2003/4/EC on access to environmental information, has the same content as the one laid down in the Arhus Convention. The definition of “documents” in Article 3(a) of Regulation (EC) No 1049/200118 on public access to documents encompasses environmental information as defined in this Regulation.

9   It is appropriate for the present Regulation to provide for a definition of ‘plans and programmes’ within the meaning of the Arhus provisions, and in parallel to the approach followed in relation to the Member States’ obligations under existing EC law. ‘Plans and programmes relating to the environment’ are to be defined in relation to their contribution to the achievement, or likely significant effect on the achievement, of the objectives of Community environmental policy. For the period of ten years starting from 22 July 2002, Decision No 1600/2002/EC of the European Parliament and of the Council laying down the Sixth Community Environment Action Programme19 establishes the objectives of Community environmental policy, and actions planned to attain these objectives. After its expiry, this will be the case for a subsequent environmental action programme.

10 In view of the fact that environmental law is constantly evolving and in order to include relevant provisions on this issue, the definition of environmental law should refer to objectives of Community policy on the environment, notably to the protection or improvement of the environment, including human health and the protection of natural resources.

11 Administrative acts should be subject to possible review where they have legally binding and external effect. In the same way, omissions should be covered where there is an obligation to act under environmental law. As acts taken by a Community institution or body acting in a judicial or legislative capacity are to be excluded, the same should apply for other inquiry procedures where the Community institution or body acts as an administrative review body under provisions of the EC Treaty.

12 The Arhus Convention calls for public access to environmental information either following a request or by active dissemination by the authorities covered by the Convention. Regulation (EC) No 1049/2001 on public access to documents applies to the European Parliament, the Council and the Commission, as well as

18  Regulation (EC) No 1049/2001/EC of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p. 43.

19  OJ L 242, 10.9.2002, p. 1.

   

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to the Agencies and similar bodies set up by a Community legal act. It provides rules for these institutions that comply to a great extent with the rules laid down in the Arhus Convention. It is necessary to extend the application of Regulation (EC) No 1049/2001 to all other Community institutions and bodies.

13 Where the Arhus Convention contains provisions that are not, in whole or in part, to be found also in Regulation (EC) No 1049/2001, it is necessary to address those, in particular with regard to the collection and dissemination of environmental information.

14 For the right of public access to environmental information to be effective, environmental information of good quality is essential. It is therefore appropriate to introduce rules that oblige Community institutions and bodies to ensure such quality.

15 Where exceptions are foreseen in Article 4(1), (2) and (3) of EC Regulation No 1049/2001, these shall apply, mutatis mutandis, to requests for environmental information under the present proposal.

16 Under Decision No 2119/98/EC of the European Parliament and the Council of 24 September 1998 setting up a network for the epidemiological surveillance and control of communicable diseases in the Community20, a network at Community level has already been set up to promote cooperation and coordination between the Member States, with the assistance of the Commission, with a view to improving the prevention and control in the Community of a number of communicable diseases. Decision No 1786/2002/EC21 of the European Parliament and of the Council of 23 September 2002 establishes a programme of Community action in the field of public health that complements national policies. Improving information and knowledge for the development of public health and enhancing the capability of responding rapidly and in a coordinated fashion to threats to health, which are elements of this programme, are objectives that are equally fully in line with the requirements of the Arhus Convention. The present Regulation shall therefore apply without prejudice to Decision No 2119/98/EC and Decision No 1786/2002/EC.

17 Article 7, first part of the Arhus Convention requires Parties to make provisions for the public to participate during the preparation of plans and programmes relating to the environment.

18 According to the Arhus Convention, such provisions are to include reasonable timeframes for informing the public of the environmental decision-making in question. To be effective, public participation is to take place at an early stage, when all options are open. In decision-making on plans and programmes relating to the environment, due account is to be taken of the results of public participation. Community institutions and bodies, when establishing provisions on public participation, are to identify the public which may participate in the light of the objectives of the Arhus Convention, including relevant non-governmental organisations.

19 Article 9(3) of the Arhus Convention provides for access to judicial or other review procedures for challenging acts and omissions by private persons and public authorities which contravene provisions of law relating to the environment.

20  OJ L 268, 3.10.1998, p. 1.

21  OJ L 271, 9.10.2002, p. 1.

   

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Hence, provisions on access to justice should be made in order to comply with the Convention in a way which is consistent with the Treaty. It is appropriate in this context that the present Regulation only addresses acts and omissions by public authorities, leaving the issue of private persons to be dealt with by the Member States, in the framework of Directive xxxx/xx/EC on access to justice in environmental matters22.

20 To ensure adequate and effective remedies, in conformity with relevant Community legislation on access to review proceedings before the Court of Justice of the European Communities, it is appropriate that the Community institution or body which issued the act or omission to be challenged, is given the opportunity to either reconsider its former decision, or to act, in the case of an omission.

21 Entities active in the field of environmental protection which meet certain conditions, to ensure that their primary objective is the protection of the environment, should have access to environmental proceedings in order to challenge the procedural and substantive legality of administrative acts and omissions which contravene EC environmental law. The subject matter of the review procedures brought by these entities must fall into the field of their statutory activities.

22 Where previous requests for internal review were unsuccessfully submitted, the qualified entities should be entitled to institute environmental proceedings before the Court of Justice to challenge these administrative acts or omissions.

23 This Regulation respects the fundamental rights and observes the principles recognized in particular by the Charter of Fundamental Rights of the European Union. In particular, this Regulation seeks to ensure the protection of the environment and application of Article 37 of the Charter of Fundamental Rights of the European Union.

HAVE ADOPTED THIS REGULATION:

TITLE I

GENERAL PROVISIONS

Article 1 Objective

1. This Regulation lays down rules aiming to apply the principles of the UN/ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental matters, hereafter named the Arhus Convention, to Community institutions and bodies, in particular by:

a) guaranteeing the right of public access to environmental information held by or for Community institutions and bodies and by setting out the basic terms and conditions of, and practical arrangements for, its exercise;

b)  ensuring that environmental information progressively becomes available in electronic databases that are easily accessible to the public through public telecommunications networks;

c) providing for public participation in respect of the preparation by Community institutions and bodies of plans and programmes relating to environment;

Directive xxxx/xx/EC of the European Parliament and of the Council on access to justice in envrionmental matters, OJ L [...] [...], p [...]

   

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d) granting access to justice in environmental matters at Community level under the conditions laid down by this Regulation.

2. This Regulation shall apply without prejudice to other Community provisions concerning access to information, public participation in decision-making and access to justice in environmental matters.

Article 2 Definitions

1. For the purpose of this Regulation

a)  “applicant” means any natural or legal person requesting environmental information;

b) “the public” means one or more natural or legal persons, and associations, organisations or groups of such persons;

c) “Community institutions and bodies” means any public institution, body, office or agency established by, or on the basis of the Treaty establishing the European Community and performing public functions except when and to the extent to which it acts in a judicial or legislative capacity;

d) “qualified entity” means any association or organisation which has the objective to protect the environment and has been recognised in accordance with Articles 12 and 13;

e) “environmental information” means any information in written, visual, aural, electronic or any other material form on:

i) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction between these elements;

ii) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in point (i);

iii) measures (including administrative measures), policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in points (i) and (ii) as well as measures or activities designed to protect those elements;

iv) reports on the implementation of environmental legislation;

v) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in point (iii); and

vi) the state of human health and safety, including the contamination of the food chain, conditions of human life, cultural sites and built structures in as much as they are or may be affected by the state of the elements of the environment referred to in point (i) or, through those elements, by any of the matters referred to in points (ii) and (iii);

f) “plans and programmes relating to the environment” means plans and pro­grammes,

   

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