Regional Overview: Western Europe

(continued)

CONCLUSIONS AND RECOMMENDATIONS

Access to Information

In general, most of the Western European countries recognize and allow access to environmental information. In some cases this access is formulated as a right, supported by all the guarantees of the concept of law, while in others the allowance is granted with less protection. It is also true that the different historic and cultural backgrounds regarding access to information mark important differences from one country to another. Nevertheless, it is safe to say that the past few years have seen an evolution toward the opening up of possibilities for access to environmental information.

Since the Third Ministerial Conference in Sofia, Bulgaria, in 1995, the greatest achievement in terms of access to information has been the adoption of new regulations or the modification of those already existing, depending on each particular case, to comply with the provisions of EC Directive 90/313/EEC on the Freedom of Access to Information on the Environment. The directive was adopted in June 1990, and it includes provisions similar to those of the Sofia Guidelines. It has been transposed in all the EU member states included in this survey (i.e. all the countries considered except Switzerland).

The European Commission has received several complaints about incorrect transposition and/or application of the directive. This has led to the opening of infringement proceedings against some countries and the consequent modification of the regulations adapting the directive. Currently, the directive is being reviewed, and this may lead to the elaboration by the commission of a reform proposal to improve the possibilities of effective access to environmental information within the EU.

Based on the situation described in this survey, attention should be drawn to the following areas that need improvement:

The right of access to information is still not recognized in all the countries for all persons, without discrimination on the basis of nationality, domicile, etc.
The definition of the environment does not clearly include issues such as construction, cultural sites, energy radiation, conditions of human life, financial and economic analysis, health, and transgenic issues in all the countries.
The public is not always sufficiently informed in all the countries about how to gain access to information or to whom their requests for information should be addressed. In many cases it is not obligatory to help citizens find the body that should address their requests for information based on the distribution of competencies, and any such help is provided on a voluntary basis or depends on the discretion of the civil servant involved.
Not all the systems offer the person requesting information the possibility to choose the format in which the information will be provided.
It is not possible to access information held by private, public or semi-public enterprises managing environmental services in all the countries.
In some of the countries, the time limits for responding to a request for information or for providing the requested information are too long (two months), especially considering information is often only useful or valuable if it is recent and updated.
In a few countries, the long time limits combined with the possibility of negative administrative silence poses a significant obstacle to effective access to information.
The exceptions listed for the mandatory or discretionary denial of access to information are very similar in all these countries. On the whole it can be said that these lists need to be more clearly defined in order to prevent excessive room for arbitrary interpretation.
Few of the region's legal systems allow the possibility of a public-interest test to allow release of otherwise classified information. This type of test is an appropriate and necessary instrument because it upholds the general principle of freedom of access to environmental information, and would lead to more precise criteria for denying access.
The cost of obtaining information has been noted in some countries to be one of the greatest barriers to accessing information, although many systems offer good practices in this respect.
Active provision of environmental information, especially using the Internet, has proven to be a good way to reduce the work load brought about by citizen requests for environmental information. Improving and adding traditional and electronic means to actively provide the public with environmental information could quickly improve the efficiency and effectiveness of the entire governmental system.

There is clearly a need to improve the legal regulation of access to information in certain cases. On the other hand, it is also necessary to adopt measures to build capacity, including public information programs that explain the information available, the ways to request such information, the bodies responsible for providing the information, etc. Similarly, there is also a need for training programs for the authorities to teach them about their obligation to provide environmental information, as well as a need for computerization and systematization of environmental data compilation and its effective treatment to improve environmental decisionmaking and the provision of information to the public.

Finally, it is necessary to mention the importance, for almost all the countries included in the survey, of the access to information policy pursued by institutions of the EU itself. This matter is also linked with public participation, as will be noted below. In some of these countries, where there is broad recognition of the right of access to information, the lack of guarantees or regulations of the type established by Directive 90/313/EEC at the level of EC institutions is difficult to explain. Though it is true that codes of conduct have been adopted (e.g. by the commission itself), it is also true that given the weight of environmental considerations in the decisions made at the EC level there is an obvious need for the adoption of principles similar to those which are being applied at the national level. The adoption by the European Commission of the Convention on Public Participation could signify a step forward in this respect.

Public Participation

Public participation is the area in which the greatest differences occur from country to country. This is due not only to the historic and cultural backgrounds of each country, as in the previous case, but also to the fact that there are few harmonizing measures in this area, either at the international level or at the EC level.

It is not easy to identify public participation achievements in all the countries given that its evolution varies not only from one country to another but also from one type of matter in which public participation is permitted to another. Except for in countries where there is a tradition of public participation, this is a matter in which European countries still have a long way to go. Furthermore, in some countries there is a tendency toward the regression and questioning of existing public participation systems, leading to involvement processes which in no way support adequate development of public participation.

Some of the points which may be developed include the following:

Greater clarification is needed in defining which environmental issues must include public participation, and access should be opened to parties other than those expressly affected or interested.
In all but a few countries, public participation in the making of laws and regulations is rather poor.
Public participation is also poor in decisionmaking processes regarding policies, plans and programs, but not for town planning.
Participation does not always occur at a sufficiently early stage. Opportunities for the public to give input should be offered from the start of the process.
The concept of the interested or affected party clearly should include NGOs as representatives of legitimate collective interests.
Mechanisms should be established to oblige the final decisionmaking body to sufficiently take into account the opinions, comments and positions tendered by the public during the period of public participation.
There is a need for procedures to go beyond the basic transparency already common in these countries. Environmental issues should also be publicized, meaning the public must be informed in a clear and understandable way of its rights and/or possibilities for participating.
Technical assistance and support is deficient in most of the countries and should be expanded.
Few countries provide specific training for civil servants about public participation. This type of training should be institutionalized.
The absence of training combined with the lack of sufficient means for promoting public participation schemes (i.e. funds dedicated to promoting public participation and education) leads to an abundance of cases in which the public does not take advantage of the existing possibilities to participate. The presence of capacity-building activities for the public could improve the situation enormously.

Decisionmaking at the local level is another area where improvements are possible. Up to now, public participation in local decisionmaking has occurred on an informal basis that does not adequately guarantee the observance of the general principles of effective public participation.

Access to Justice

Access to justice is the weakest part of the framework for public participation in every country. Although some countries offer good solutions to overcome some of the more crucial obstacles (i.e. the length and cost of the processes), the situation in general needs improvement.

One aspect of great importance is the general slowness of many administrative and judicial appeal procedures. This is especially problematic concerning cases of denial of environmental information. Few of the countries have procedures for quick resolution of such cases, and this has led to situations in which the information was useless when it was finally received, up to three years after it was originally requested.

Another important obstacle to effective access to justice is the high fees and costs. The prohibitive expenses include bonds that often are set too high for parties with limited means who are acting to protect the environment. This problem requires not only improvement of the regulations but also a change in the priorities and social values which the judges and courts are obliged to apply.

Another obstacle that deserves mention is the restriction of legal standing. In many of the surveyed countries, only those directly affected are afforded the right to go to court, and this concept does not always include NGOs as representatives of collective and social interests worthy of promotion, as is the case of the environment.

Finally, it should be noted that in the context of the EU, legal standing before the Court of Justice of Luxembourg is also restricted to affected parties. This does not in any case include NGOs, who are forced to appeal any breach of community environmental legislation indirectly by presenting a complaint to the commission. Just as national legal systems need to broaden their opportunities for legal standing, the courts of the EU must also allow broader access to international justice.

3. This part includes comments received by John Bonine.

The author wishes to express thanks to Nyonga Rugumayo Amundsen, John Bonine, John Hontelez, Kirsten Sloth and Jeremy Wates for their comments on this report

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