Other nonbinding instruments endorsed by Spain:
Law 30/1992 governs the "right to access to files and registers2," allowing citizens access to the information available in registers and files.
Furthermore, due to the implementation of Directive 90/313/EEC of the European Community Council on the Freedom of Access to Information on the Environment, adopted on June 7, 1990, Law 38/1995 on the Right to Access Information on the Environment was approved. This law was adopted nearly three years after the deadline set out by the Directive, and aims specifically to regulate access to environmental information in the hands of the authorities, it is only applicable fully to central authorities, autonomous regions should develop their own specific legislation.
The European Commission has considered that Law 38/1995 does not fully and correctly implement the provisions set out in Directive 90/313/EEC, and has therefore urged the Spanish government to amend it in order to correctly and fully implement the Directive. A draft law proposal is currently under development to solve this lack of compliance.
When defining what it considers to be information relating to the environment, Law 38/1995 includes all the data available from the public administrations which make reference to:
In short, the following are included:
Conditions for Obtaining the Information
"Available information" is considered to be the information which is or which should be in the possession of public authorities. All public bodies of the central, regional or local administrations with responsibilities and possession of information about the environment (i.e. the central administration, regional administration, bodies integrating the local administration and agencies dependent on any of the public administrations) have the obligation to make this information available to the public when they exercise their administrative powers.
Individual entrepreneurs or companies who manage public services (private bodies) are obliged to make the environmental information they possess available to the administration responsible for the service when so requested, and to the authority by which they are supervised or upon which the public service they are providing depends.
A two month time limit is set for deciding whether access will or will not be provided to the information requested. If no answer has been given and this time limit has elapsed (i.e. if there is administrative silence), this will be considered to be negative silence and the request will be considered to have been refused. While positive answers may be given within the two month time limit, actual access may in practice be postponed until a later date, fixed arbitrarily by the public body to whom the request is addressed. This means that it is possible to receive a positive response within the two month period but the requester will have to wait until a later date to visit, by appointment, the register to see the documents or to be informed that at some time in the future the photocopies will be ready for collection. Whether by notification or by implication through negative silence the administrative procedure ends, and then the review of administrative decisions is judicial and not administrative.
In practice the lack of response to requests has been detected to be one of the main obstacles to exercising good access to environmental information. Some surveys carried out by NGOs3 indicate a concerning level of lack of response, i.e. a negative administrative silence which means refusal of access without specifying the reasons why. This, together with the fact that the established type of appeal procedure is judicial, slow and costly, creates a situation of lack of access to information. This fails to comply with what is set out by Directive 90/313/EEC, which requires a reply and explanation of the reasons for refusing access to environmental information.
All individuals or companies, nationals of one of the member states which make up the European Economic Area or resident in one of these states, or the nationals of any other country not included in the above but whose states grant reciprocity with Spain, have the right to receive environmental information.
It is possible to chose the format in which the requested information will be provided. If the information is available in different formats, the person formulating the request has the right to choose the format in which the information will be provided.
Refusal to Provide Information
The public authorities can refuse to provide environmental information. The law ruling on access to environmental information includes many exceptions, as set out in the Directive, and it does not include definitions or limitations which help in the interpretation of those exemptions. Authorities may turn down a request for such information when it affects:
A request for information may also be refused if it involves the releasing of unfinished documents or data or internal communications, or where the request is manifestly unreasonable or formulated in too general a manner.
Problems inevitably arise in the interpretation of these exceptions, especially with regard to terms such as "unfinished data or documents," "requests manifestly unreasonable or formulated in too general a manner," "national defense" and "international relations." However, concerning exceptions based on commercial and industrial confidentiality, Law 38/1995 places restrictions on arbitrary interpretation in several specific cases. The failure to define exceptions leaves a great deal of scope for arbitrary interpretation. Although arbitrariness can be broad or restrictive, in practice the interpretation of which environmental information is open to the right to access has, to date, been restrictive.
The public interest test is not recognized in the legislation, though it may be defended before the courts on the basis that the legislation recognizes the general principle of freedom of access to environmental information which can only be reasonably denied when a cause from the list of exemptions is totally applicable.
Informal Guidelines for Agencies and the Public
Each authority has the right to set out specific guidelines on how environmental information is provided, and can establish conditions regarding how the public is to request information. For example, using a particular request format, etc. Guidelines of this type are currently being developed by many authorities.
Specific Institutions/Officials to Provide Information
The existence of a specific institution or specific officials responsible for providing information depends on the administrative organization of every authority responsible for providing information on the environment. At a national level, the recent Decree 208/1996 sets out the organizational framework for providing information to the citizens at the different departments of the central administration. Every ministry should have an administrative information unit responsible for answering the requests made by the public.
If an Authority Does Not Possess the Information
If public authorities do not possess the requested environmental information they are not obliged to provide any information whatsoever. Nevertheless, some departments often help the applicant find which body is responsible for possessing such information, even though they are not legally obliged to do this.
Costs of Obtaining Information
Authorities may establish a price for the requested information. The Directive sets out that this price must be reasonable and cannot be an obstacle to the exercising of the right to free access to environmental information. However, Law 38/1995 does not establish the need for the price to be reasonable. Each level of the administration (central, regional and local) may establish a cost in accordance with its respective laws of public rates and charges.
Law 38/1995 allows authorities to make a charge for supplying the requested information, but fails to incorporate the provision set out by the Directive whereby such charges should not exceed a reasonable cost. The law does not make allowances for reduced charges for requests submitted by environmental organizations. Each authority is free to decide the charges it will make. Authorities are not obliged to inform people in advance of the charges that will be made in relation to requested environmental information. The regulation makes it possible to require a deposit in advance or to apply a compulsory procedure for payment. Currently, an infringement procedure is being opened against Spain for making unreasonable charges to an NGO upon which a compulsory procedure was applied. After more than one year of seeking information, the NGO was obliged to pay around ESP 600,000 for information regarding coastal management in a region of Spain.
There are not always adequate facilities for obtaining copies of information, even when payment is made for reproduction and dissemination costs. There are major differences between the authorities or departments at central, regional or local level which are politically committed to allowing access to information on the environment. There are also major differences from one body to another. In some regions, for instance, great efforts have been made to guarantee better access to environmental information while in others there is very little or no interest in providing this type of access. The same is true of municipalities.
Authorities are obliged to have up-to-date information about the state and environmental effect of certain sectors, such as water, atmosphere, toxic and hazardous waste management, although this information is not always made available to the public4. It is not common practice for authorities to inform citizens of the possibility of informing international bodies about Spain's degree of compliance with international agreements.
Under certain circumstances public authorities are legally obliged to provide citizens with information. Some such cases include the following:
Public authorities responsible for environmental matters are obliged to periodically inform the public about the state of the environment. It is common practice to publish reports about the state of the environment, the frequency of which varies from one administration to another and from one department to another. It should be said that in numerous cases the frequency chosen by some authorities to issue reports about the environment is an indication of the lack of systematic compilation and processing of data about the state of the environment. However, it can also be said that in recent years there has been greater interest in putting into operation action plans to update existing databases and to create new ones, though this is still insufficient in the opinion of the different bodies responsible for these services.
Electronic Means of Dissemination
In the Spanish legal system there is no obligation to provide environmental information in an electronic format. However, the use of this type of technique is so obvious that there is a gradual evolution towards greater use of this method. There are environmental information networks in the following areas:
The role of nongovernmental information centers has been very important, particularly where the responsible administrations did not have departments, offices, centers or places for consulting environmental information and bibliographies. In recent years many NGOs have organized small offices or libraries to centralize information, to the extent that some of these projects have turned into important environmental information centers, which are now used even by authorities with environmental competencies. Some of these centers have received governmental assistance, whilst others, on a more modest scale, have survived with the limited means available to the organizations maintaining them.
The same is applicable to the private promoters of certain projects who, under EIA legislation, are obliged to provide information on the impact that their project will have on the environment.
In turn, Law 20/19868, which establishes the basic legal framework for toxic and hazardous wastes, imposes the obligation on all producers of such wastes, on persons or bodies treating, storing, recycling or disposing such wastes, to keep a log of all relevant activities.
When land management plans are carried out it is necessary to respect some administrative procedures, including that of submitting the management plan for public information, as regulated by Royal Decree 1346/1976 of April 9, which approves the revised text of the Law on Land Regime and Urban Planning.
The right to referendum is established in the constitution and developed by an Organic Law.9 This is the exclusive competency of the state and is of a consultative character. Authorization for the calling of popular consultations by referendum must be granted by the central government, at the proposal of its president, by means of Royal Decree. The matters to be subjected to referendum are those which have the consideration of a political decision of particular significance in the opinion of the congress of deputies, the body which represents national sovereignty. Not all matters can be subjected to referendum, but the environment is not among those which are excluded and therefore would be applicable. There are no privileged groups in the exercising of referenda. The referendum procedure is governed by the same regulations as the general electoral regime, and is presided by the principles of free, direct and secret universal suffrage in the area corresponding to the consultation. Ratification of the regional autonomy process by referendum has been the way in which this instrument has been most used, there having been no referenda to date in relation with an environmental issue.
The authorities only have the obligation to call a referendum in the event of constitutional reform, and not in any other case.
Right to Initiative
The Spanish political framework is constituted by a parliamentary monarchy and representative democracy in which the participation of citizens is constitutionally recognized. All Spanish citizens of legal age can exercise the right to legislative initiative, which at state level has been developed by an Organic Law (March 26, 1984) regulating legislative initiatives. There are similar regulations at a regional level.
By way of example we can mention the procedure established at central level. For the launching of such an initiative the promoting commission is required to present an articled text, which will not be accepted if there is a draft law proposal in relation with a similar object or a legislative mandate in force. Once the proposal has been accepted it is necessary to compile 500,000 signatures in a maximum period of six months. The central electoral council is the body responsible for checking regularity in the collection of these signatures. Once the required number of signatures has been collected in the indicated period the parliamentary phase begins and state compensation is established for the expenses incurred, provided the number of signatures necessary for the initiative to prosper has been reached.
Not all matters can be subject to legislative initiative. The environment, however, is not among those excluded and can be the object of this instrument for direct public participation in regulatory production. Since 1978, when it became possible to exercise this right, no legislative initiative at a national level and relating to the environment has been successful, due to the difficulty involved in obtaining the required number of signatures in such a short space of time with all the formal requirements correctly completed. The law foresees the possibility of extending this period by three months when it can be demonstrated that causes not attributable to the promoters have made it impossible to deliver the collected signatures. For example, in April 1991 a legislative initiative was presented which, whilst not ultimately successful, had the aim of proposing a law ordering the abandonment of the production and use of nuclear energy.
The Legislative Royal Decree 1302/1986 of June 28 on Environmental Impact Assessment (developed by Royal Decree 1131/88), standardized the administrative procedure for EIA, incorporating public participation through institutional consultation and public information of impact evaluations. The environmental impact study is subjected to public information which is carried out in conjunction with the project and within the procedure required for its authorization. The participation system is guaranteed by means of the process of consultations which allow individuals and NGOs the right for their comments to be taken into account. There are also regulations at local level, such as the 1996 regulations of the Jaen region, which regulate the figure of the environmental report.
Royal Decree 2414/1961 of November 30, which approves the regulations for annoying, unhealthy, harmful and dangerous activities10, requires that when an application for a license is made the mayor's office must open the file for public information. The mayor's office must also personally notify the immediate neighbors of the proposed site about the license request, and its decision as to whether to grant or refuse the license must be by reasoned resolution. Any incident is dealt with in accordance with Law 30/1992 on the legal framework of public administrations.
Law 29/1985 on waters, establishes that activities liable to cause the pollution or degradation of public waters, and in particular the discharge of waste waters and products, require administrative authorization. This must be requested from the competent body, through the opening of the administrative decisionmaking process, in which the opportunity will exist for the presentation of comments and claims by private individuals, in recognition of the right to public participation.
The law on the land regime and urban planning establishes that certain actions which affect the land regime and its management require licenses and execution orders which must necessarily be granted by the competent administrative body, and in some cases must be subjected to public information.
There cannot be said to be privileged groups, as the public information process allows all citizens to present comments and claims and thus to participate in the administrative decisionmaking process.
In practice, the form of public participation most commonly used is the presentation of comments and claims in the decisionmaking process which must be accompanied by environmental impact studies and must be subject to a period of public information. This means they are accessible and therefore anyone who has an interest in making comments and claims can know at what moment of the procedure these can be presented.
The competent authorities must give the reasons for their decisions and clearly state how they have taken into account the matters raised by private persons exercising the right to public participation, though it is common practice to omit any such reference.
Comments and claims made by private persons are not given due consideration, and for authorities to comply with the requirements of the regulations it is sufficient for them to state in the administrative resolution that they have been taken into account. Therefore, this form of participation has little effect, though there are some good examples. For instance, the fact that the thousands of comments and claims received by the ministry of development in relation with the proposed route of the Madrid-Valladolid high speed train through the Lozoya valley, led the ministry to abandon its proposal.
The main limitations lie in the inability of private persons to bear the cost of the required technical assistance and exhaustive monitoring of the specific approval process.
Due to the fact that the possibilities for public participation in the decisionmaking process correspond to the approval process of registered administrative files, the regulation of how notifications must be made, to whom they must be made and their content is found in each one of the specific provisions which regulate the different cases. Otherwise, when the matter is not exhaustively regulated in sectoral regulations, it is necessary to refer to Law 30/1992 on the legal framework of the public administrations and the common administrative procedure, which is applicable in such cases, as this contains the general rules which regulate relations between the administrations and the administrated.
Interested parties whose rights and interests are affected are informed about the decision taken. This is done by means of notification delivered by any means which permits the recording of reception by the interested party. When the notification is addressed to an indeterminate number of persons it is achieved by publication in the official journal of the state, autonomous region or province.
Interested parties may be informed, either orally or in writing, by any means which permits the recording of reception of the notification by the interested party or parties.
In practice, publication in the official journal of the state, autonomous region or province is used with great frequency, due to the fact that the addressees are usually an indeterminate number of persons.
Notifications must explain the reason for the decision with succinct reference to the facts and legal grounds, as well as the corresponding provisions of the rules which regulate the case, and the grounds of the resolution adopted must be accredited in the procedure.
In the administrative procedure for EIA, the decisionmaking process is transparent, as in the case of a decision which authorizes an annoying, unhealthy, harmful or dangerous activity. In both cases, periods of public information are opened and the right to public participation is recognized, but this does not mean that the decisions taken in such processes seriously take into account the comments and claims of individual citizens, as the law requires that those presented be taken into account by the administrative authority taking the decision but not with binding character.
Openness of Parliamentary Committees
Neither individuals nor NGOs can participate in the parliamentary sessions of the congress of deputies, although they can attend without the right to a voice or a vote. NGOs can participate in consultative commissions and working groups when they are called to give their opinion about certain specific matters.
Neither does the Spanish Constitution establish a specific procedure for cases of failure to obtain access to public participation. The constitution refers generically to the public participation of citizens, specifically regulated by means of the different sectoral regulations, as one of the phases of the procedure (planning legislation, environmental impact assessment, industrial policy, approval of natural resource management plans, etc.).
Finally, the Spanish Constitution does not establish a right or specific procedure for access to justice in matters related to the environment, it being necessary to resort to ordinary jurisdictional procedures derived from generic law for effective judicial protection and the right to petition. However, the Spanish Constitution recognized in Article 125 the so called "popular action," which grants citizens and, implicitly, organizations the right to go before courts and challenge an activity which affected a collective interest. The environment is included under this concept of collective interest. The use and scope of this "popular action" has been developed under sectoral laws.
In any case, there is no generic process for public participation as this is dealt with in detail in each one of the sectoral regulations. Legitimation operates in several areas.
|TABLE 1: Administrative Standing|
|In the administrative decisionmaking process||In the administrative appeal of administrative decisionmaking process|
In the administrative decisionmaking process:
|TABLE 2: Legal Standing Against Government|
|Special administrative court||Civil court||Criminal court||Arbitration court or special economic courts||Constitutional court|
In Spanish law, access to the constitutional court is not contemplated for environmental infractions. Access can only be gained by cases which involve severe effects on public health, this being one of the considered fundamental rights.
Several laws are involved in the case of civil servants who do enforce compliance with laws or who are themselves in non-compliance Responsibilities can be exacted of civil servants for their actions and omissions.
In the most serious cases there may be cause for penal responsibilities, for the perversion of the cause of justice or infractions related with planning and the environment (granting of illegal licenses, lack of control, etc.). The reference legislation would be the penal code and the criminal prosecution law.
Less serious cases would give rise to administrative responsibility which can be exacted through the generic procedure established by Law 30/1992 on the legal framework of the public administrations and the common administrative procedure.
|TABLE 3: Legal Standing Against Polluters|
|Special administrative court||Civil court||Criminal court||Arbitration court or special economic courts||Constitutional court|
Environmental matters do not have access to the constitutional court. This is due to the constitutional consideration of the right to enjoy an appropriate environment as a guiding principle of general policy and not a fundamental right.
Precautionary measures are aimed at impeding the continuation of a situation liable to produce prejudicial effects or to assure the effectiveness of a future resolution, anticipating its effects or adopting the measures which permit the putting into practice of its future determinations.
The possibility exists, for both private persons and NGOs, to use injunctions in the case of civil jurisdiction (cf. above, Section 5).
In the contentious-administrative and penal jurisdictions (cf. Section 5), it is possible to use the figure of precautionary measures already commented upon, which can be agreed at the request of one party or by official action.
If precautionary measures are adopted at the request of one party the judicial authority sets a bond which must be paid up in order for the measures to be implemented. The problem is that these bonds tend to be for millions of pesetas, which is impossible for associations, NGOs or private persons to pay an example being the case of Itoiz dam in Navarre.
Nevertheless, it should be noted that in Spain there are environmental public prosecutors, who are responsible for promoting the action of justice in defense of legality, the rights of citizens and the public interests protected by law. These public prosecutors have highlighted the lack of collaboration between some public administrations and environmental competencies: on occasions, members of the judicial police, when requesting the handing over of documents and data relating to cases under investigation, have been told that they could acquire the documents in a bookshop.
Actions against polluters can be administrative proceedings, in minor cases, or penal proceedings in more serious cases. In penal proceedings there is the option between denouncement and accusation. Denouncement is limited to informing the authority of the supposed infringement, and the action of the denouncer is limited to this, except where he or she is called to testify in the event that the public prosecutor or the administrative or jurisdictional authorities implement a penal procedure. This procedure does not imply costs of any type. In the case of accusation, however, the accuser must formulate an accusation and request proof. Thus, there are costs to be met as the accuser acts as procurator and under the direction of a lawyer.
Justice in Spain tends generally to be rather slow, and in some cases can be extremely slow, making effective judicial protection impossible.
Within these parameters, the least agile jurisdictions are usually the civil and contentious-administrative jurisdictions. On the whole, and despite the fact that there are free-of-charge judicial proceedings, access to the courts is slow and costly, especially in environmental matters in which enormously expensive technical and expert reports are often required.
For a citizen whose income is in line with the monthly minimum wage, there is the possibility of access to free-of-charge judicial proceedings within civil jurisdiction, but even so it can be said that economic conditioners are an important limiting factor for effective access to justice. The law of free assistance is Law 1/1996 of January 10.
In the case of civil proceedings, all costs are imposed on the party which has totally lost the suit; in this way the winner of the suit can recover a large part of the costs incurred.
The main problem for access to justice is administrative neglect, generalized and chronic non-compliance of environmental laws, the length and expense of judicial proceedings and the lack of specialists in environmental law, both at judicial level and in relation to the rest of the professionals involved (public prosecutors, lawyers, experts, etc.).
The ombudsmen can suggest the modification of the criteria used to produce administrative resolutions, formulating recommendations, reminders, warnings and suggestions to the authorities about the needs for the participation of collectives and associations.
The regional ombudsman of the Canary Islands, in his 1996 report, complains of the passiveness and disinterest of the administration, which is manifested in the reiterated refusals to provide information about actions undertaken which can have notable repercussions on the environment.
Since 1995 environmental complaints have acquired their own substance. They are structured in two main groups: those concerning the degradation of the rural environment and those whose concern is focused on the urban environment, and refer preferentially to classified activities, especially noise and non-compliance with regulations. An increasing number of complaints are received as a result of their swift processing and the fact that they are free-of-charge.