3. Developments

3. DEVELOPMENTS

3.1 The review of the EU Directive

The Directive contemplates an evaluation and review in two parts.

To begin with, there is the obligation on the member states to report on their experience with the Directive. Article 8 of the Directive requires the member states to report to the Commission "[f]our years after the date referred to in Article 9(1)". The date referred to in Article 9(1) is 31 December 1992. Thus, the deadline for the member states to report to the European Commission is 31 December 1996. This is the first part of the review.

Then, there is the obligation of the Commission to report to the European Parliament and the Council of Ministers. The Commission's report will be made after the member states' reports. This is the second part of the review.

This review process offers a special opportunity to proceed further to improve access to environmental information in the member states of the European Union, and indeed in Europe generally. The EU Directive has, to date, formed the principal reference point for access to environmental legislation in Europe. As such, improvements which would increase the effectiveness of the Directive (and the national legislation based on it) would be of broad impact.

The review also offers each member state the opportunity to evaluate how access to environmental information is working within its own borders and to initiate its own steps to introduce improvements in its national system of access to (environmental) information. Examples of good practice from the member states and elsewhere can usefully inform this process.

3.2 Review of the EU institutions' rules

The Commission and the Council have each recently completed a review of the first two years of experience with the Code of Conduct and related rules on access to documents which took effect in 1994. The Commission's review resulted in one change to the costs provisions of its rules to reflect actual practice¹⁶. The Council likewise made only minor changes to its rules¹⁷. The Council's conclusions accompanying its decision do raise the possibility that the Council may establish a register of documents.

3.2.1 Revision of the Treaty on European Union

The member states of the European Union are currently engaged in an Intergovernmental Conference (IGC) to negotiate the revision of the Treaty on European Union, adopted at Maastricht in 1992. One item on the agenda is transparency and the democratic workings of the EU. Accordingly, proposals are being discussed to anchor the principle of transparency, and, in particular, access to documents held by the EU institutions in the Treaty itself. Provisions to this effect can be found in the draft Treaty elements submitted by the Irish Presidency to the Dublin summit meeting in December 1996.

3.3 International developments

3.3.1 Review of the UN ECE Guidelines and negotiation of a UN ECE Convention on Access to Environmental Information and Public Participation in Environmental Decision-Making.

The UN ECE Sofia Guidelines call for their review two years after adoption. Two years after adoption is October 1997.

The Sofia Ministerial Declaration also opened the way to the negotiation of a Convention on Access to Environmental Information and Public Participation in Environmental Decision-Making. Negotiations formally commenced in June 1996 with the objective of having the Convention ready for signature at the next Environment for Europe Ministerial Conference to be held in Denmark, in June 1998.

3.3.2 Review of Agenda 21: Rio plus 5

It is perhaps also worth noting that Agenda 21 and progress toward sustainable development since UNCED will be the subject of review in the UN Commission on Sustainable Development meeting and UN General Assembly Special Session, in June 1997.

3.4 Conclusions: Building on existing experience

It is evident that there is now, or will be in the near future, a great deal of activity in a variety of fora on the subject of access to (environmental) information. These processes are running in parallel and yet to a certain extent can be significant influences on each other, as for example the review of the EU Directive and the ECE Convention negotiations. It is too early to predict whether these various developments will result in significant improvements in the legal instruments for access to environmental information.

The foregoing has been intended to outline the state of affairs regarding access to environmental information in Europe.

In many states, a foundation has been laid for a useful and effective regime of access to environmental information. At the same time, it is also clear that improvements can and, where possible, should be made.

For both kinds of situations, improving or establishing access to environmental information, it can be useful to draw on experience to date. As sketched above, a best practice model is already emerging which indicates how both legal instruments and the practice under them may be employed to the benefit of public access to environmental information.

¹⁶ The Commission's rules now provide that a charge may be made for the supply of documents longer than 30 pages. Previously, the charge was mandatory. Commission Decision of 19 September 1996 amending Decision 94/90/3CSC, EC, Euratom on public access to Commission documents, O.J. No. L 247, 28.9.96, p. 45.

¹⁷ Council Decision of 6 December 1996 amending Decision 93/731/EC on public access to Council documents, O.J. No. L 325, 14.12.96, p. 19.