The right of access to environmental information can be established by a variety of legal instruments: national laws, constitutional provisions, international agreements, codes of conduct, or measures adopted by the European Union. The discussion below concentrates on legislative provisions with binding force, in particular the EU Directive on freedom of access to environmental information.

Access to information legislation can be of two types: (1) legislation applicable to all information in the hands of public authorities; or (2) legislation specifically limited to environmental information.

A number of European states have legislation of the first type. These include Sweden, the Netherlands, Denmark and France. While Sweden's legislation is very old, dating in its earliest form from the mid-eighteenth century, the legislation in the other states is a development of the last 15-20 years.

In some states, there are constitutional provisions concerning the right of access to information. Examples can be found in the Greek and Portuguese constitutions. As a rule, such constitutional provisions require legislation or regulations to activate the right they profess to guarantee. Without such secondary legislation, the constitutional provisions are seldom of practical effect.

2.1 Directive 90/313/EEC on freedom of access to environmental information

The most significant legislative development in recent years is the adoption of the EU Directive on freedom of access to environmental information. Because of the significance of the Directive in requiring or guiding legislative developments across Europe, the Directive will be discussed here with some thoroughness. For the text of the Directive, see Annex 1.

The Directive has created a right of access to environmental information in every member state of the European Union. Prior to the Directive, most of the member states did not recognise a right to information at all. The Directive has established, in broad terms, a set of minimum standards for access to environmental information. As a result of the Directive, all EU member states now have legislation on access to environmental information in place.

The European Parliament first took the initiative of calling for a measure of this sort in a resolution adopted in 19852. Further impetus came from the European Commission's Fourth Environmental Action Program and the Council of Environment Ministers' request that the Commission present a proposal in this area. This the Commission did in 1988, leading to the adoption in June 1990 of Directive 90/313/EEC on freedom of access to environmental information3.

In addition to its direct impact in the member states of the EU, the Directive is having a further secondary effect. The Directive's framework informs and is guiding the development of access to environmental information legislation elsewhere. For example, Austria's 1993 law on access to environmental information is modelled on the EU Directive. The Directive also forms the basic reference point for the countries of Central and Eastern Europe who wish to join the EU.

Thus, the Directive is an important influence both inside and outside the area of its direct application.

2.1.1 The Directive's provisions

The purpose of the Directive is to give the public access to information on the environment held by public and quasi-public authorities and to set out the basic terms on which information is to be made available.

The structure of the Directive is a broad one. The Directive contains a broad definition of environmental information, a broad definition of what a public authority is, and a broad general rule of access for any person without the need to show an interest in the information requested.

The Directive also includes a number of exceptions to the general rule of access. A refusal to release information must be based on one of the exceptions set out by the Directive. These exceptions are meant to protect legitimate interests in, for example, national defence, commercial confidentiality or personal privacy.

The Directive also contains provisions on the time limits for a response, appeals and costs.

It is important to remember that the Directive requires a minimum level of access to environmental information. Member states are free to maintain or adopt measures providing for a greater degree of access than the minimum required by the Directive. Member states are equally free to refrain from incorporating exceptions from the Directive in their national legislation. The implementing legislation reveals however that a substantial number of the member states have transposed provisions of the Directive literally, frequently verbatim.

2 European Parliament Document B2-736/85 (16 July 1985). The resolution was introduced by two members of the Parliament's Environment Committee, Ken Collins (Socialist, UK) and Beate Weber (Socialist, Germany).

3 For the legislative background to the Directive, see generally, L. Krämer, Focus on European Environmental Law, Sweet and Maxwell (London, 1992), pp. 290-309.




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