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Access to information, public participation, and access to justice regarding EU institutions and bodies
Regulation (EC) No 1367/2006 (the ‘Aarhus Regulation’) lays down rules for the application of the provisions of the Aarhus Convention in relation to institutions and bodies of the EU.  These rules are meant to guarantee the right of public access to environmental information received or produced by EU institutions or bodies and held by them; ensure that environmental information is progressively made available and disseminated to the public in order to achieve its widest possible systematic availability and dissemination; provide for public participation concerning plans and programmes relating to the environment; and guarantee access to justice in environmental matters at EU level under the specified conditions. (Art 1.)
The Regulation is based on a treaty provision corresponding to the current Article 192(1) TFEU. Core terms, such as ‘environmental information’ and ‘the public’, are defined in Article 2.
When an applicant requests access to environmental information held by an EU institution or body, Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council, and Commission documents applies.89 The Aarhus Regulation supplements that regulation by providing certain specific rules applicable to environmental information.
EU institutions and bodies shall organise the environmental information with a view to its active and systematic dissemination to the public. Insofar as is within their power, they shall ensure that any information that is compiled by them, or on their behalf, is up-to-date, accurate, and comparable. They shall also make the information progressively available in electronic databases that are easily accessible to the public. Information collected before the entry into force of the Regulation (ie before late 2006) need not be made available electronically unless it is already available in such form. Among the things that must be made available in databases or registers are reports on the state of the environment; data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment; and environmental impact studies and risk assessments concerning environmental elements, or a reference to the place where such information can be requested or accessed. The Commission must also ensure that, at regular intervals not exceeding four years, a report on the state of the environment, including information on the quality of, and pressures on, the environment is published and disseminated. (Arts 4 and 5.)
As far as grounds for refusing access to documents with environmental information are concerned, Article 4 of Regulation 1049/2001 applies. However, the grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment. When the 2001 regulation requires the existence of an overriding public interest in disclosure such an interest shall, with some exceptions, be deemed to exist where the information requested relates to emissions into the environment.
In addition to the exceptions set out in Article 4 of Regulation 1049/2001, access to environmental information may also be refused where disclosure of the information would adversely affect the protection of the environment to which the information relates, such as the breeding sites of rare species. (Art 6.)
The regulation includes specific rules relating to plans or programmes relating to the environment. EU institutions and bodies shall provide early and effective opportunities for the public to participate during the preparation, modification, or review of such plans or programmes when all options are still open. The public affected or likely to be affected by, or having an interest in, such a plan or programme is to be informed of, inter alia, the draft proposal, where available, and of practical arrangements for participation. When deciding on the plan or programme, due account must be taken of the outcome of the public participation. (Art 9.)
Non-governmental organisations which meet certain criteria—including being an independent non-profit-making legal person that has existed for more than two years and has the primary stated objective of promoting environmental protection in the context of environmental law—are entitled to make a request for internal review to the EU institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act. Such a request must be made within six weeks after the administrative act was adopted, notified, or published, whichever is the latest, or, in the case of an alleged omission, six weeks after the date when the administrative act was required. All requests are to be considered unless they are clearly unsubstantiated. The institution or body must state its reasons in a written reply no later than 12 weeks after receipt of the request. That time may be extended to eighteen weeks.
An NGO which has made a request for internal review may also institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty. (Arts 10-12.)
The term ‘administrative act’ covers only measures of individual scope under environmental law, taken by an EU institution or body, and having legally binding and external effects (Art 2). According to the General Court, the limitation of NGOs’ right to make a request for internal review only of measures of individual scope is incompatible with Article 9(3) of the Aarhus Convention, according to which members of the public who meet relevant criteria laid down in national law shall have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. However, this finding was later overturned by the Court of Justice on the ground that, by adopting Regulation No 1367/2006, the EU did not intend to implement the obligations which derive from Article 9(3) of the Aarhus Convention with respect to national administrative or judicial procedures. The Aarhus Convention could thus not be relied on in order to assess the legality of the Regulation.  On the preconditions for relying on an international agreement in support of an action for annulment of an act of secondary EU law, see section 4.7.
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