Geneva, 9.12.96 - 13.12.96

While a reasonable effort has been made to ensure the accuracy of this report, many of the delegates' statements were apprehended through simultaneous translation, or were made by delegates not speaking in their native languages, so for this and other reasons, complete accuracy cannot be guaranteed. Further information, e.g. on the positions taken by specific delegations, can be obtained from the ECO participants.]

1. SUMMARY

The third meeting of the ad hoc Working Group for preparing a draft UN ECE Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking took place in Geneva from 11th - 13th December 1996. It was preceded by two parallel informal meetings (9th - 10th December) one on environmental information, the other on the definition of environmental decisionmaking / public participation.

The main outcomes of the meeting were as follows:

1.1 Definition of 'environmental information'

A new draft for the definition of environmental information was drawn up by the meeting (see Annex 1 for text). This contains three parts:

- a list of elements of the environment (two options: a short exhaustive list and a longer non-exhaustive list, the latter broadly derived from the EU directive definition and the Espoo 'impact' definition);

- factors (such as noise, radiation), activities or measures affecting the environment (including legislation, policies, programmes and plans, and in square brackets, voluntary agreements and economic or financial analysis used in environmental decisionmaking); and

- impacts of either the environment or the factors, activities or measures affecting the environment, on human health and safety, socioeconomic conditions, cultural heritage and the quality of life; and in square brackets, the information needed to assess such impacts.

The meeting for the time being ruled out the inclusion of information currently being used in the course of public participation in an environmental decisionmaking process (e.g. in relation to proposed legislation, policies, programmes and plans etc), on the understanding that this would be discussed and addressed under Article 5/public participation provisions. However, the meeting agreed to leave open the possibility of returning to the definition of environmental information with this issue if that proved necessary after the Article 5 discussion.

According to the definition, there is no limitation on the form in which environmental information may occur (visual, electronic etc), provided it is in a 'material form'.

While an assessment of the prospects for this part of the draft Convention would be premature, at present it seems that virtually all delegations which spoke on the issue would favour or accept a definition wider than the corresponding definition in the EU directive.

1.2 Timeframes for responding to information requests

A majority of the governmental delegations which spoke on the issue of timeframes for responding to information requests expressed support for exploring a proposal from the ECO delegation for a differentiated approach to time limits with respect to such requests. This would involve a relatively short timeframe for providing a response to a request (acknowledgment, refusal, referring the request to a different public authority, asking for clarification of the request, and in most cases, providing the information) and a longer timeframe as the final deadline for actually providing the information. A few countries expressed a preference for having a single deadline for all forms of response to a request. These countries were for the most part those most opposed to having that deadline shorter than the six weeks proposed in the ECE Secretariat's proposal.

1.3 Definition of environmental decisionmaking

The meeting agreed on a provisional list of types of 'environmental decisionmaking', which will provide a framework for future discussions on this matter. Broadly speaking, these types are:

- licensing/permitting of specific activities (further divided into proposed and existing activities);

- plans, programmes and policies (and possibly strategies);

- rule-making and law-making.

Whereas most delegations support the notion of public participation in licensing/permitting decisions, there was slightly less support for public participation where decisionmaking on policies, programmes and plans is concerned, and less again with respect to legislation and rule-making.

It was agreed that voluntary agreements and international decisionmaking should be covered (as subjects for discussion), though not necessarily as separate categories. Whereas there were no objections raised to the principle of public participation in the making of voluntary agreements, several delegations felt the inclusion of international decisionmaking would be likely to prove quite problematic.

Most delegations do not regard monitoring, implementation and enforcement as a separate category of decisionmaking, though there may be scope for considering these under the other categories.

1.4 Overview of positions adopted

At the moment, the delegations appearing to pose the greatest obstacle to a strong Convention are Russia, Germany and (less actively) France. The UK and Italy, both active delegations, had a more mixed input to the meeting but also blocked a number of important proposals to strengthen the text. At this meeting, Russia emerged as the delegation appearing to be having the most difficulties with the idea of such a Convention, opposing almost every meaningful provision proposed for the draft text.

On the other hand, many delegations took (on balance) quite positive positions during the meeting, notably Albania, Austria, Belgium, Denmark, Finland, Hungary, Netherlands, Portugal, Slovenia and Ukraine. However, with virtually all delegations, there is room for improvement.

Many delegations remained silent throughout the meeting, and those named above frequently remained silent on specific issues that arose, perhaps leaving other delegations to voice their positions. So the picture given here is a very incomplete one.

As in previous meetings of the Working Group, the ECO delegation and its allies had a significant influence on the proceedings. In both informal groups, the papers circulated by the ECOs substantially influenced the framework for discussion.

[A more detailed summary of countries' positions is to be found in section 5 below, based on the references in sections 3 and 4. (The latter may be easily accessed for a given country by doing a word-search for that country's name, if you have this document by e-mail.)]

2. NGO REPRESENTATION

The ECO / Environmental NGO Coalition was represented in the plenary session by (including advisers):
Jeremy Wates, European Environmental Bureau/Earthwatch (FoE Ireland)
Olga Razbash, Ecojuris, Russia
Peter Roderick, Friends of the Earth England, Wales and Northern Ireland and Earthrights
Alexander Kodjabashev, Bulgaria
Steve Stec, Utrecht University, Netherlands / Public International Law and Policy Group, US
Barbara Rutherford, WorldWide Fund for Nature (WWF) International, Switzerland
Julia Harris, Center for International Environmental Law (CIEL), Geneva office.

Also present representing other NGOs or quasi-NGOs were:
Magda Tóth Nagy, Regional Environmental Center (REC), Hungary
Wolfgang Burhenne, World Conservation Union (IUCN), Germany
Jane Stewart and Henri Bandier, International Council of Environmental Law (ICEL)

As at previous meetings, some governments had ECO representatives within their delegations, notably Ralph Hallo of Stichting Natuur en Milieu, Netherlands, Jerzy Jendroska of the Polish Environmental Law Association and Barbara Vrecko of Ecosvet, Slovenia (the sole member of the Slovenian delegation).

3. INFORMAL PREPARATORY MEETINGS

The purpose of the two-day informal preparatory meetings (9th-10th December) was to identify 'options' for the relevant parts of the draft text, so that these could be presented to the plenary session in the following days.

3.1 Information issues

The informal meeting on environmental information was chaired by Jerzy Jendroska, Poland (and Polish Environmental Law Association), at the invitation of the Chair of the Working Group. The ECO representatives present were Jeremy Wates, Alexander Kodjabashev and Ralph Hallo (in Ralph's case, as an ECO adviser to the Dutch government).

At the beginning of the meeting, the ECOs circulated a document containing detailed proposals for textual amendments to Article 3 and the relevant definitions, presented in the form of an alternative draft (see Annex 2 attached). This text rapidly became the main focus of the discussion in the meeting, and remained so throughout it. Only one other delegation, Armenia, produced written proposals, but unfortunately these were only available in Russian and the Secretariat was unable to arrange translation at short notice (the working language of the informal meetings was English, with no translation available). So the Armenian proposals were not considered.

[It should be noted that only 16 countries were represented at the informal meeting, and it was supposed to be an informal meeting, so where it states in this section that something was agreed or not opposed, this should be understood in that context, i.e. things could change when the issues are discussed in the full Working Group. It is nonetheless considered useful to include this information as an indication of how the discussion might go in the plenary sessions and where the problems might lie. Comments made by officials which clearly represented their personal opinions are not included in this report.]

As the definition of environmental information and the issue of time limits were discussed in the plenary, the discussions on these subjects which took place in the informal meeting are referred to in following section (4.11 and 4.3).

Access to documents (para. 1): The UK, supported by Russia, opposed access to actual documents or copies of them, preferring that access be granted to the information rather than the documents containing it. The UK argued that confidential or internal comments might be written by officials on the margins of a document but the ECOs countered this by citing a case where an Ombudsman had ruled that a public authority was entitled to withhold such written comments but was obliged to provide a copy of the actual text of the document with the comments erased. Most delegations seemed in favour of including access to documentation.

Information 'held': Lithuania, supported by Russia, proposed that the obligation in para 1 should only apply to information held by public authorities.

Poverty: An ECO proposal to explicitly refer to poverty as one of the grounds on which requesters should not be discriminated against was opposed by the UK and Ireland, on the basis that it was covered by 'or any other ground' and there was not sufficient reason to single it out.

No need to state an interest: An ECO proposal to change 'proved' to 'stated' was supported by the meeting.

Exemptions (para 2): The grammatical and structural changes proposed by the ECOs for this paragraph were agreed.

Weighing of interests: In the 'chapeau', the ECO proposal to change 'weighed against' to 'outweighed by' was agreed.

Confidentiality of proceedings etc: The ECO proposal (that there should be both a background in domestic law for the designation of proceedings as confidential, and a publicly available reasoned decision in each such case) was presented, but the discussion was both unclear and inconclusive. There seemed to be acceptance of the need to circumscribe the exemption but not necessarily in the manner proposed.

International relations: As anticipated, the ECO proposal to delete this exemption provision was opposed (UK, Ireland, Hungary). Following this, the possibility of qualifying the exemption was suggested (by RH, with the NL example of info about Germany's Kalkar reactor) and not ruled out. The UK gave the example of FoE obtaining info about a Malaysian dam project which nearly led to the collapse of the government (this was meant to be an argument in favour of the exemption).

Public security: The ECOs presented their concerns over this exemption but did not come with specific proposals at this stage. The UK also said it had some concerns over this term.

Sub judice, preliminary investigation proceedings etc: The ECO proposal to replace sub-paragraph (c) with a simplified and more narrowly circumscribed text was agreed, with the retention (proposed by Ireland) from the Secretariat's text of the reference to information the disclosure of which would prejudice the course of justice.

Commercial confidentiality: The proposed 'exemption to the exemption' for information relating to emissions drew criticism from the UK which cited a case in which two of its power generation companies had claimed that information on their emissions could reveal details of their generating processes, which could give their rivals a competitive advantage. In one case, the appeals body forced disclosure; in the other, not. Russia had a problem with the term 'emissions', preferring to just refer to 'impacts'. Ireland felt the term 'impacts' might not be clear, and more generally, queried whether the exemption to the exemption was necessary, given the public interest test in the chapeau.

Belgium proposed to delete the exemption of intellectual property, on the grounds that protection of intellectual property rights is not about limiting access but about the terms of reproduction.

The ECOs presented its proposal, contained in a new paragraph (2bisA), for qualifications on the use of the commercial confidentiality exemption in para 2. No delegation opposed this.

Voluntarily supplied information: The ECOs presented their proposal to delete sub-paragraph (f) relating to voluntarily supplied information. This was opposed by the UK, which stated that it had initially transposed the equivalent clause in the EU directive as a mandatory exemption, and had recently shifted its position to making it a discretionary exemption, but could not go further at this stage.

Information not held: The ECO proposal to delete (h) was supported by Ireland and then agreed, on the understanding that para 2 only dealt with information which was held, and that requests for information not held were dealt with in para 3.

Internal communications/unfinished documents: The ECO proposal to specify that the internal communications were those of a public authority was agreed. The ECOs proposed other qualifications on this exemption in a separate paragraph (2bisA(d)). The UK had reservations about exempting from the exemption 'data gathered on an incremental basis', citing the example of an experiment in which certain time horizons needed to be met before the data would be statistically significant.

Other exemptions to exemptions: The ECOs proposal for a general exemption to the exemptions, where the information requested would be likely to prevent or mitigate a threat to human health or the environment etc (see 2bisA(a) in Annex 2) was not opposed by any delegation.

Nor was there (for the time being) any opposition to the ECO proposals relating to information the disclosure of which could pose a threat to the environment; information which a public authority has a right to inspect in performance of its regulatory functions; or the protection of 'whistleblowers'.

Information officials / onward referral of requests (para 3): The ECOs proposed that where a request had been directed to the wrong public authority, the public authority should refer it on to the public authority believed to hold the information and notify the requester that this had been done (as opposed to simply telling the requester which public authority to address the request to). Germany was opposed to public authorities being required to know which public authority holds which information (for the purpose of referring on a wrongly-directed request). The UK took a slightly more moderate position, stating that if a public authority could reasonably be expected to know where the request should be referred on, it should refer it on. Both Germany and the UK were strongly opposed to any requirement to designate information officials.

The ECOs stressed that it was for public authorities to determine how to organise themselves efficiently but for the public it was important that officials responsible for dealing with information requests be readily identifiable by the public and that these officials are fully informed on which categories of information are held by which public authorities.

Assistance with unreasonable requests (para 4): The ECOs proposed that public authorities should be required to assist in clarifying manifestly unreasonable requests (as well as requests formulated in too general a manner). This was supported by Germany and Albania. The UK initially had some concerns that such a requirement could make a lot of work for officials, but then withdrew its reservation.

Refusals (para 6): The question of whether refusals of requests should be in writing was raised. The UK only wanted a requirement that the refusal be in writing if the request had been made in writing. The ECOs agreed that it was not necessary to have refusals in writing for every casual telephone request where the requester did not even want a written refusal, but said that if the requester did want a written refusal this should be provided whether or not the request was made in writing. (In practice, most serious requesters will make the request in writing to be sure of being able to subsequently exercise their appeal options.) The Dutch system (somewhat similar to the UK proposal) was felt by the meeting to provide a useful model.

The ECOs also proposed that 'the reason or reasons' for the refusal should be given (instead of 'one or more reasons'.) This was supported by the UK and Ireland and agreed.

Charges (para 7): The UK, Germany and Russia wanted to delete the provision excluding the costs of compiling or retrieving information, and no government representatives spoke in support of this provision. Whereas the UK and Germany wanted to leave it to countries to decide what was 'reasonable', Russia felt this term should be deleted or clarified. Germany proposed that 'reasonable' should be taken to mean 'not prohibitive', but the ECOs argued that charges could cross the 'unreasonable' threshhold before becoming prohibitive. Albania also felt that the term 'reasonable' was unclear but for this reason was in favour of keeping the second sentence in (a), perhaps elaborated, though without the exclusion of costs of compiling information.

The UK proposed that the text should refer to 'reasonable charges' rather than 'reasonable costs'. Later, the UK cited a case of digital information held by the UK's mapping authority (Ordnance Survey) which had been requested by FoE. Whereas the costs of providing the information would have been very low, the information was reckoned to have a high value, so a charge of £360,000 was considered reasonable.

The ECO adviser to the Netherlands (RH) gave examples demonstrating how the 'reasonable' requirement in the EU directive had not worked, resulting in large discrepancies in charging practices.

Belgium proposed to amalgamate sub-paragraphs (a) and (b), replacing (b) with the phrase "and that the amount and invoice conditions have been published in advance". The UK was also in favour of charging conditions being made clear in advance, though it was unclear whether the obligation to do so should fall on the Party or on the public authorities separately.

Responding to the ECOs proposal to delete the provision that supply of information could be made conditional upon the payment of a charge, the UK cited the impressive statistic that over 90% of invoices submitted for information in the US are not paid, and a lot of time is spent chasing them up.

The ECOs' proposal for waiver provisions was supported by Lithuania but criticised by Germany, which felt that the term 'public interest' was unclear, and by the UK, which was concerned that commercial organisations could use agents posing as representatives of public interest organisations to gather information for them. Latvia was also concerned at commercial organisations requesting information in the guise of NGOs. In response to the latter point, it was pointed out that US law, which contains waiver provisions, addresses this problem and could provide some guidance. It was suggested by the Chair that requiring waiver provisions could in some way balance the hard line taken with respect to what costs could be charged for.

Right to inspect information free of charge (para 7(c)): The ECOs proposed that the public should be entitled to inspect environmental information in general, not just that in registers; that inspection should be free of charge; and that adequate facilities for inspection should be provided.

The UK and Germany were not in favour of all environmental information being available for inspection, preferring to limit this provision to information held in registers (though Germany felt 'registers' needed clarifying). Both Poland and Latvia had a problem with the word 'inspect', which they felt had rather officious connotations.(as with 'inspector').

It was generally agreed that where information was available for inspection, this should be free of charge.

It was suggested that the question of facilities for inspecting information should be addressed in the context of Article 4.

Right to specify form of information (para 7(d)): Germany proposed the addition of 'as appropriate' in the Secretariat's draft (which would effectively invalidate the provision). It stated that in certain situations, its public authorities might hold information in both electronic and paper form, but might only wish to give it out in paper form. This position was strongly criticised by the UK and the ECOs.

When the ECOs proposed the deletion of the reference to low cost format, it was noted by Germany that this provision no longer fell under the heading of charges. Germany proposed moving it to Article 4, but the ECOs argued that it related to requests from the public to public authorities so should remain in Article 3.

Appeals (para 8): Germany challenged the list of requirements for appeals proceedings (transparent, independent etc), arguing that it should be a matter for each country to determine how its appeals system operated. In Germany, it might be difficult to satisfy the requirement of independence as appeals may be determined within the same body which handled the information request. The Chair suggested that this might still be considered independent if the appeal were handled by the same public authority but at a different level.

The ECO proposal to refer to quasi-judicial procedures and decisions was accepted, though some delegations said that they had no such category in their countries.

Penalties (proposed para 9): The ECO proposal to make failure to provide environmental information an illegal act was barely discussed, due to shortage of time. Initial reactions (UK, Germany) were somewhat hostile.

3.2 Environmental decisionmaking / public participation issues

The informal meeting on the definition of 'environmental decisionmaking' and Article 5 was chaired by Alistair McGlone of the UK delegation, at the invitation of the Chair of the Working Group. The ECO/NGO interests were represented by Olga Razbash (Ecojuris), Julia Harris (CIEL) and Magda Toth Nagy (REC).

Written proposals were circulated in the course of the meeting by Italy, the Netherlands, Romania, Russian Federation, Denmark and the ECOs/REC jointly. The ECOs also circulated the paper prepared jointly by the US Environmental Law Institute (ELI) and CIEL (with the agreement of those organisations).

The Chair of the informal group suggested that the group define environmental decisionmaking (EDM) then attempt to enumerate the fields in which environmental decisions are taken. Denmark suggested that perhaps it was not necessary to define decisionmaking, only decisions; and furthermore, that the Convention should only deal with environmental decisions that have a significant impact. REC stated that it would be useful to define the types of environmental decisions to be covered by the Convention and link them to specific public participation requirements. REC also suggested to follow the logic of the ELI-CIEL paper. At this point, the delegation from Romania offered an alternative to the definition of EDM. This definition would limit the scope of the Convention to ensuring effective public participation "in preventing and solving environmental problems" (rather than all decisions impacting the environment whether or not they are aimed at a specific environmental problem). It was unclear whether the Romanian delegation was aware of the significance of this limitation.

There was a discussion of the threshhold requirement included in the present draft definition of EDM (Art 1(iv) of the Secretariat's text). Netherlands questioned the need for inclusion of the word "significant." Austria suggested retaining this language but using the criteria for "significant" from ESPOO, adding that it may not be practical to have public participation in every decision. The ECO delegation argued to change 'significant' for 'appreciable', since at the very first stage of the decisionmaking process it is not yet known whether the impact will be appreciable. The REC agreed that a definition of EDM might not be needed if the text of the Convention spells out the different types of decisions and what kind of public participation is possible in them. REC also suggested to have a general introductory part to Article 5 where the general principles of public participation common for all types of decisionmaking would be enumerated, and then have the specific types of decisions in more detail. France recommended eliminating all qualifying language such as "significant" and "important" from the text of the Convention. The Chair indicated that there seemed to be three ideas regarding a threshhold requirement: retain "significant" or replace it with a similar qualifier; use "significant" with specific criteria listed in an annex; or eliminate the threshhold from the definition. Denmark was insistent that there should be some kind of threshhold, saying that it was difficult to set up common rules that are applicable for all countries' legislation in the different areas, especially in law- and rule-making. Denmark agreed somewhat with the REC that there could be common rules or principles equally applicable in other areas, and supported the approach of looking at the different types of decisions.

Types of decision:

Italy then referenced the CIEL/ELI paper noting that it provided a good point of departure for further discussion. Italy suggested concentrating on defining the scope of the Convention but leaving arguments on law making and rulemaking to a later stage. Policies, programmes, and planning were considered appropriate subjects to be covered. Italy further noted that projects need to be differentiated by stage (e.g., new activities, existing activities, and substantive changes to existing activities).

Germany recognized that there may be a lesser form of public participation appropriate for law making or rulemaking. Germany was in favour of a definition which was not over-complicated but also supported the use of some kind of list based on ESPOO and the EU EIA and IPPC directives for determining the threshhold at which decisions should be covered. Norway suggested a similar approach to that taken in the case of environmental information: a more general chapeau and then enumerated exceptions. Netherlands agreed with Germany that the definition should be simple, and found it helpful to use lists for the threshhold but added that the Convention should deal with two levels: to whom the decision is directed and what is the impact of the decision. In the latter case, a list could be used or a specification could be defined in the definition itself.

Russia expressed the need for a reference to national legislation/implementation because what constitutes law making, etc. is defined by national legislation. Russia also noted the impossibility of amending its constitution and therefore the need to exclude legislative or judicial decisions from the scope of the Convention.

The group decided that judicial decisions should not be included within the scope of the public participation provisions. The group then used Articles 5b-5i of the CIEL/ELI paper to discuss the kinds of decisions to be covered by the Convention.

It was questioned whether there is any difference between law making and rulemaking. Portugal responded that they should be dealt with differently. Under the Portuguese system, law making includes acts of parliament whereas rulemaking includes acts of government, decrees, and local initiatives.

Russia insisted that there be no distinction as to how law making and rulemaking are treated by the Convention--they should BOTH be excluded. Russia then reiterated its stance on amending its constitution for purposes of implementing the Convention.

The ECO delegation cited the Rio Declaration, Principle 10, in the defence of covering all areas of EDM including lawmaking and rulemaking equally. REC reminded the group that it is the practice in several CEECs that law making is an open and participatory process and that law making can include the phase before parliamentary involvement when decisions are still in the domain of the executive. The Netherlands considered that lawmaking and rulemaking have to be dealt with differently, since there is a distinction in their practice: in rulemaking, the government might decree that there is a period when the public can make comments, but lawmaking is a parliamentary activity where public participation is not possible at an earlier stage.

Italy proposed that there be NO binding provisions regarding law making or rulemaking but suggested to put recommendations at the end of the Convention.. Denmark agreed that the issue of law making is too difficult for this Convention -- it is rooted in national traditions and would raise questions of why participation in this sphere should be provided only for environmental decisions. With respect to rulemaking, Denmark was more optimistic but added that the distinction between rulemaking and projects is not clear.(?)

The Chair then summarized, noting that there was no agreement in the group, except on the fact that lawmaking and rulemaking are quite different in character than other decisions. This is due to:

- the constitutional character of countries;

- legislative traditions;

- the fact that the procedure to be followed is different from case by case projects or permitting.

The Chair proposed the following options with respect to lawmaking and rulemaking, to be considered by the plenary:

- they should not be covered by the Convention;

- should be covered only by moral principles (recommendations);

- they should be fully covered.

The Chair then moved the discussion to the subject of policies, plans, and programmes and to what degree they should be subject to the scope of the definition. Germany indicated that these are extremely abstract and broad concepts that need further definition. Germany added that certainly SOME should be subject to some form of public participation. Netherlands stated that the types of decisions listed in 5b-5i should be differentiated according to the level at which the impact is felt (i.e., rules affecting individuals, rules of general application). Netherlands also questioned the meaning of "policies." Bulgaria emphasized that for countries in transition, plans and programmes are very important. Russia indicated that these categories are not useful. Rather the Convention should focus on the bodies responsible for the decisions and should cover only certain administrative decisions.

REC gave examples of energy, transport, and waste management "policies" that should be included within the scope of the Convention because of their significant impacts on the environment. The Chair noted that there is no way to avoid addressing policies, plans, and programmes. The group could not agree though on what these concepts mean. The Chair suggested a distinction between those with a focused and specific effect and others that would fall into the legislative and rulemaking categories.

Regarding 5e, proposed projects, Netherlands felt that projects are equivalent to licensing and permitting because they culminate in these types of decisions. Denmark stated that some projects in an earlier stage may fall under planning. Germany agreed with the Netherlands, adding that all projects have a planning phase. Italy suggested to talk about projects and activities.

Russia emphasized the need to distinguish between private and public projects because the decisions on some projects are taken by parliament (as law) and others are the prerogative of private enterprises. Russia questioned how this Convention could compel them to provide access to their private planning mechanisms. For example, with oil exploration, siting, and design it is only at the final licensing stage that the public and public authorities have access to that information.

Italy stated that before an activity is undertaken the public should have an opportunity to participate in the process. A core list of relevant activities would include.projects; policies, plans and programmes where they are directed at a specific activity; permitting and licencing.

Denmark noted that these categories seem to contain a mixture of both result and method. A final decision in the form of a plan, project, etc. may be achieved through different methods (e.g. the planning process). Denmark felt it was important to differentiate between the methods by which the decision is taken and the nature of the decision. Some of them are process oriented (law and rulemaking), others mixtures (policies, programmes, plans).

The ECO delegation supported Italy's proposal to include the definition of activity in the Convention, indicating that it should be broader than the ESPOO list, for example issues like resource usage should also be covered.

During discussion of public participation in implementation, monitoring, and enforcement, most delegations expressed confusion as to how the public could participate in these areas. Germany felt that enforcement is the prerogative of the government and that the rights of the developer need to be considered in this regard. Denmark questioned how the public could participate here noting that the primary problem is LACK of enforcement, which would be covered under access to justice. Romania stated that public participation in these domains would necessitate two parallel structures: governmental and non-governmental. This would be very difficult to accomplish, according to Romania. Russia agreed, stating that enforcement is a sensitive area governed by national legislation and that enforcement matters should be left to national authorities. The Chair questioned what could be covered by Article 5 in this regard since access to courts is dealt with in Article 6, the need for information is dealt with in Articles 3 and 4, and whenever a further decision is required it will be covered by the relevant provision in Article 5. The group however recognized the need for a preambular reference to ensure that there were no obstacles to complaints of the public, communication with authorities, etc. Russia was adamant that enforcement issues should be outside the scope of the Convention.

Reacting to the explanation of ECO/REC why public participation is important in enforcement, Denmark was in favour of some provisions in the preamble indicating that everyone has a right to complain, go to the media, etc. Denmark stated that this should be characterized as a right to intervene, not a right to participate. Italy stated that citizens can identify areas where enforcement is lacking but cannot (should not be able to?) enforce law directly. The ECO delegation questioned Russia's stance on this issue since the notion of citizen suits already exists within the Russian system. Italy said that citizens have the right to expose lack of enforcement but do not have a right to enforce directly. He however suggested to Russia that it is not possible to divide enviromental information into different sectors and give some information while denying information related to enforcement for example.

Italy thought that it might be useful if any disputes between the public and public authorities relating to enforcement or monitoring were settled at non-judicial level. He could support the inclusion of this principle, if not covered elsewhere. Netherlands suggested to deal with some aspects of the issue of enforcement, e.g. a request to make an enforcement decision. It should not yet be decided whether in the Preamble or in Art. 5, though it is a sensitive issue. The Netherlands pointed out (to Russia) that enforcement can be split up as penal, civil and administrative types and the public has to have a right in all decisions after the decision is taken. It can also affect third parties.

The Chair considered that most things related to enforcement, monitoring and implementation should be met by other provisions of the Convention and the operation of normal citizen's rights. To the extent that any further concerns exist that might not be met, the Convention might have to address these, either by a preambular provision or elsewhere.

The group generally did not seem to appreciate the significance of dealing with enterprise restructuring in this Article. The ECO delegation argued that this deserved a specific approach, especially because of the responsibility for past environmental liabilities. Germany, while recognising the importance of this, thought that these are civil liabilities and that they should therefore not be covered by the Convention; but if privatised enterprises needed licences, the issue would be anyway covered by the licensing type of decisions. The Chair suggested that the discussion could return to this category if it is later decided that it should be a separate category.

Regarding international instruments and policies, Russia indicated that it would have the same objections to their inclusion in the Convention as with law making. Under Russian law, international instruments are on the same level as national laws.

The UK distinguished between policies developed at the national level to be discussed in an international context and participation in international meetings. Regarding the first category, the UK recognized the need to treat all policies the same for participation purposes, whether the policy is voiced in an international forum or not. Regarding the second category, the UK stressed that the parties to this Convention cannot purport to regulate an international meeting under the aegis of another organization [conveniently side-stepping the issues of international agreements between members of the Convention and the possibility of promoting participatory principles in international fora, where appropriate, which would NOT constitute "regulation" of those other fora.]

The Netherlands suggested dealing with the second category through general principles. The Commission questioned whether international institutions in this context would cover Community institutions. Russia stated it could not even support public participation under the first category because this would be outside the framework and object of the Convention.

Denmark, while agreeing with UK, did not want to exclude putting something in the Convention on international decisions but expressed scepticism on how this would work and how the public would be notified and consulted, etc. The REC explained the importance of transparency in international decisionmaking, using the argument that a country's position in international fora should be part of the national policies and should be treated same way as the national level public participation.

The Chair summarized that the group recognized the desirability of promoting public participation in international fora but at this stage could not propose legally binding provisions. Later he modified this to: Some members considered to promote appropriate options for public participation but no one expressed that there should be legally binding provisions on international instruments.

Portugal supported the textual language of 5i(4) (ELI/CIEL paper) and suggested adding an obligation to "promote inclusion of NGOs when appropriate."

There was a brief discussion of voluntary agreements (VAs). Netherlands argued that they should be covered since they are more and more used and in the future VAs could be important instruments to implement EU Directives. IUCN noted that there is a growing demand that VAs include public participation. Denmark said they should be covered appropriately, but not as a separate category.

The Chair summarised that there was a recognition that voluntary agreements or covenants should fall under the scope of the Convention but it was necessary to find an appropriate way to deal with them. It was considered likely that VAs of a general nature could be included under rules and VAs of a specific nature could be covered under licensing. The Netherlands suggested to consider dealing with them in a separate category, since VAs have an important impact on decrees, licenses and partially might replace legislation.

The Chair again summarized the discussion: some states use voluntary agreements, even some EU legislation expressly provides for implementation of VAs in member states. (e.g. waste packaging, energy policy). Other delegations said there is often a lack of transparency regarding VAs. The group noted that VAs vary in their character: sometimes they are specific, sometimes they are more general like rules or laws. The proposal is therefore not to cover them expressly but rather describe them generally in the category in which they fall: general VAs should fall into the decisions about laws and rules, or specific types of decisions.

Definition of Environmental Decisionmaking:

Russia stated that the definition needs a reference to national legislation. Russia offered an illustration of a possible definition: "a procedure as defined by the legislation of a State party ... for a public authority to make implementing environmental decisions [excluding] legislative and judicial decisions".

Italy countered that national procedures will have to change to adapt to the provisions of the Convention so this reference to national legislation makes no sense.

[end of day 1]

At the beginning of the 2nd day of the drafting group, the Chair recited a list of concepts/ideas taken from the 1st day to report to the Plenary:

i) threshhold issue

-"significant" impact

-"significant" impact defined with reference to the criteria of ESPOO

-"appreciable"

-no threshhold

ii) article 5 options:

- a list (inclusive or exclusive) of decisions to be covered

-decisions identified by national legislation

-the decisions covered to be designated by the state parties at their discretion

iii) definition options:

-define decisions

-define activities

-define decision-making

iv) differentiate among types of decisions (general and specific), either in definition or later in text

Denmark indicated that only two ideas from the original draft definition are important: that the Convention deals with decisions taken by public authorities and that it excludes decisions taken by courts or other bodies acting in a judicial capacity.

Russia again emphasized that no rules of general application should be included. The text should reflect this by using the words "administrative" rules to make it clear that legislative rules are not included. Russia would be flexible, however, to accommodate countries that need to reflect that THEIR legislation IS covered by the Convention.

IUCN suggested using "at the executive level" to clearly distinguish between government and parliament or the judiciary.

REC supported a definition including all decisions "affecting" the environment that lists (inclusively) the kinds of decisions or refers to those decisions covered in Article 5.

Denmark amended its earlier statement, noting that since the definition of public authority does not include courts, the exclusive language is not necessary. But it still may be necessary to explicitly exempt other bodies acting in a judicial capacity.

Article 5:

The Chair summarized some ideas regarding Article 5:

i) general and specific decisions should be dealt with separately

ii) possible components of participation in specific decisions

-public to be informed in sufficient time

-establish timeframe for procedure

-early involvement of public

-appropriate arrangements for consultation

-due account to be taken of public input

-provision for public review of and/or appeal against the decision

iii) possible components of participation in general decisions

-provision to public of draft

-opportunity to comment

-transparency of the decision-making procedure

Denmark added that provisions should include that the public does NOT have to prove an interest in order to participate.

REC called attention to the principle of subsidiarity reflected in the CIEL/ELI discussion draft. REC stated that the determination of the appropriate decision-making body should be in accordance with this principle.

Denmark suggested using the language "as early as possible before the decision is taken" because the alternative language, "as early as possible in the decision making procedure" creates the problem of when the procedure starts.

Austria proposed to delete "without having to prove an interest," noting that only concerned individual members of the public and groups should be able to participate

Italy noted that plans and programmes fall somewhere between the general and specific categories and thus need separate treatment. Netherlands stated that they can be both or either.

REC suggested to include a general principles section indicating the right to participate without having to prove an interest. Then, the provisions under e.g., specific decisions will clarify who the public is in those cases.

Italy reiterated the need to distinguish between new, existing, and changed projects within the "specific" category.

Russia stated that Art. 5 should cover only specific obligations for State parties. No general principles should be included. Regarding the interest requirement, the ECE Guidelines adopted in Sofia distinguished between access to information and access to decision-making. For access to decision-making, it is necessary to prove an interest.

REC noted that the Russian constitution (A. 30(2)(1)) currently has no limitation on showing an interest such as that proposed by the Russian delegation.

Denmark stated that the interest issue and the threshhold issue are interrelated. If there is no interest requirement, then it should be clear that the Convention deals only with decisions having a significant / appreciable impact.

Specific proposals for the text of Art. 5:

[Brief analytical note [JH]: The fact that a number of delegations were confused by some of the categories in the CIEL/ELI proposed text -- e.g., implementation, monitoring, and enforcement -- led the Chair to suggest that it had been useful up to a point, but that it should not continue to be a basis for discussion. This was unfortunate since it basically preempted consideration of the STRUCTURE offered by this draft. Instead, the group focused on general discussion of the elements to be included and the (I would say) confusing written proposal from Italy.]

Netherlands suggested restructuring Article 5 to include general provisions applicable to all types of decision, and concrete procedural provisions.

Italy suggested that the old Art. 5 must become several articles and that fixed time frames for procedural aspects should be avoided. Italy proposed the following elements: a set of binding principles (e.g., transparent, notification) and a list of appropriate possibilities allowing parties to choose the most effective way to implement the principles.

4. PLENARY SESSION: MAIN ISSUES DISCUSSED

The main substantive issues discussed in the plenary were the definition of 'environmental information', categories of environmental decisionmaking, and (briefly) time limits in connection with information requests. Written reports from each of the informal groups were circulated [not yet available in electronic form - ask if you want it]. An update was given on the EU's role in the negotiations.

4.1 Definition of environmental information (Art. 1(iii))

Significant progress was made in restructuring, clarifying and (for the most part) strengthening the draft text in this area. Altogether, four sets of discussions on this issue took place:

- in the informal preparatory group;

- in the plenary, Day 1-2;

- in a small drafting committee, Day 2;

- in the plenary again, Day 3.

[Section 4.11 just gives the background discussion so skip on to 4.12 unless you are particularly interested in this.]

Definition of 'environment': for and against: During the informal meeting, the ECOs presented two options for dealing with the definition of environmental information:

(1) a definition of 'environment', followed by a separate definition of 'environmental information';

(2) a single, revised definition of environmental information.

The ECOs expressed a preference for the first option as being more logical, though both options contained the same substantive amendments.

A third option, to base the information provisions of the Convention on the EU directive, was put forward in the informal meeting by Germany. However, this failed to gain any support, with both the ECOs and the UK pointing out that the directive was in any case due to be reviewed and that the review process could take account of any changes proposed in the Convention drafting process.

So the discussion became a debate between the two ECO options, with the UK, Hungary, Russia and Ireland preferring Option 1 (though in Ireland's case doubting whether it would be achievable, in which case Option 2 would be important) and Germany, Albania and possibly Lithuania having a preference for Option 2.

Arguments for having a separate definition of the environment were that it would apply to all three pillars of the Convention; arguments against, that it had not been achieved before, that it would be impossible to achieve within the time constraints for the drafting process, and that it went outside the mandate of the Working Group.

When the issue first came up in the plenary, Germany made a strong statement against having a separate definition of 'environment' and no other delegations opted to take the floor, so without any discussion, the matter was dropped. (The ECO delegation had decided to support countries defending it but the issue was not considered important enough to push for it independently. However, a lesson was learnt from this episode: the ECO delegation and others had expected the conclusions arrived at in the informal group to be presented to the plenary throughout the meeting as an introduction to each discussion point. This did not happen, causing some delegates to privately question the value of the informal meetings.)

The plenary then proceeded to work from the Secretariat's draft ('Draft Elements ..') without taking any account of the fact that the informal meeting had preferred the alternative options put forward by the ECOs. When this was pointed out by the ECO delegation, several delegations expressed their preference for working with Option 2 of the ECO text as against the Secretariat's draft (Denmark, Austria, Italy, Portugal, Albania, maybe Germany and Ireland) while still having reservations about parts of it. Others (France, Russia, Armenia) had reservations about working with a document they had only just received, and only in one language. In the event, the meeting formally worked from the Secretariat's draft but delegations repeatedly referred to the ECO text.

Restructuring the definition: The ECOs proposed to clarify the structure of the text by separating out matters relating to the form and matters relating to the content of information, as well as by distinguishing clearly between elements of the environment and activities or measures affecting or designed to protect the environment. These proposals were broadly welcomed by the meeting.

Form of information: The ECO proposal that all forms of information (visual, electronic, etc) should be covered was broadly supported by the Germany, UK, Italy, Ireland, Finland and Denmark, with only Russia stating that it had a 'different view'. Germany at one point wanted a complete, exhaustive list of forms but later softened this position. The UK was generally in favour of information in any form being available but raised the question as to whether information in the mind (e.g. of an official) should be covered. (Apparently it would be in the UK, and also in the Netherlands, which has an information-based system rather than a document-based system. Most countries have a document-based approach.) Albania felt that in such cases a distinction should be made between personal and official information. In the end, it was agreed to refer to information in any material form.

Exhaustive or non-exhaustive list of elements: Both the Secretariat's and the ECO's proposal contained the idea that the list of elements describing the environment should be non-exhaustive (the words 'inter alia' and 'includes' were used). This was supported by Albania, Denmark, Austria but opposed by Russia, Italy, UK, and Germany. . France said it could accept 'inter alia' if there were only a short list of elements.

Some countries were against enumerating elements of the environment at all (France, Russia), preferring to rely on their own national laws to decide what environmental information is; others wanted to have a very short list (Germany, Armenia). Belgium criticised these approaches, and made a strong defence of the need to be very concrete in listing elements.

Russia preferred a definition focussed on matters affecting human health, and wanted to exclude scientific information obtained from original research.

Denmark wanted the definition to refer to the 'state of' the various elements of the environment. This was criticised by the ECOs as an unnecessary limitation.

Human health and safety: Albania favoured covering human health and quality of life issues in a separate sub-paragraph dealing with matters which are affected by the environment (as was eventually proposed by the drafting committee).

The UK, supported by Germany, was opposed to a general inclusion of human health and safety information, but both, and IUCN, were in favour of including certain environment-related health information. The UK suggested the WHO definition of environmental health as a possible model ("the direct pathological effects of chemicals, radiation, and some biological agents and the effects (often indirect) on health and well being of the broad physical, psychological, social and aesthetic environment, which includes housing, urban development, land use and transport" - actually the WHO definition begins with "includes"...). Against this, the ECOs argued that any definition which limited the range of health information covered to that where it was known to be related to an environmental cause, however broadly defined, presupposed that the cause was known, which frequently would not be the case.

Water: The UK pointed out in the informal group that drinking water in pipes is not considered by the British courts to be covered by the EU directive 90/313/EEC, which led to the suggestion to add 'drinking water' in parentheses. When this was put forward in the plenary (by ECOs), Germany had reservations because it related to health matters.

Air and atmosphere: The ECOs suggested that the term 'atmosphere' was broader than the term 'air' (which would not for example include the ozone layer). The UK proposed to have both, in case air in buildings might not be covered by 'atmosphere'. This was supported by Bulgaria, Poland, the Czech Republic and Austria.

Climate (change): Germany, supported by Austria, wanted to exclude weather data, which have a high commercial value. It therefore proposed to only include climate change. This addition was opposed by the ECOs. Later, Germany did not pursue this point in the drafting committee or the final plenary.

Biosphere/biodiversity: The ECOs, supported by Portugal, proposed to use the encompassing term 'biosphere' as well as biodiversity, flora, fauna and possibly GMOs (otherwise, GMOs separately). Croatia felt these elements should be listed separately rather than as part of the biosphere. Lithuania and Russia also had reservations about 'biosphere'. Finland referred to the UNESCO biosphere conference in the '60s. Denmark proposed 'biodiversity and the components of biodiversity' as an alternative. Armenia wanted to emphasise biodiversity loss. No delegation explicitly opposed the inclusion of GMOs (except in the general sense of wanting a shorter less explicit list).

Natural resources: Some delegations had reservations about the breadth of the term 'natural resources' (Poland, Russia, Germany). Ukraine suggested limiting the scope to exploration or exploitation of natural resources; Denmark, to non-renewable resources. Austria felt both renewable and non-renewable resources should be covered.

Noise/radiation: It was proposed by Germany (supported by Russia) that these items should not be listed as elements of the environment but rather as factors that affect the environment. This was taken note of in the restructured definition.

Land and landscape: The ECOs proposed the addition of the term 'landscape' to 'land'. This was supported by the UK, Germany, Hungary, the Ukraine, Finland (ref. to Lugano, Art. 10?), Denmark and Poland. Italy and Russia felt the term was too vague, which prompted Denmark to remind the meeting of the existence of the pan-European Biological and Landscape Strategy where the term 'landscape' has been accepted. (It is also used in Espoo.)

Some delegations (Russia, Ukraine, Latvia) had problems with the term 'land', which in their countries was felt to have other connotations, eg property. Germany also felt this term should be clarified. The ECOs rejected these criticisms, referring to legislation in Eastern European countries on land zoning and land protection and arguing that much would be lost if 'land' were excluded.

The Netherlands proposed that land use or spatial planning should be added.

Protected areas: Some delegations (Latvia, Estonia, ECOs) felt it important that protected areas and nature reserves such as national parks should be covered. The ECOs proposed the term 'natural heritage' and were supported by Ireland, Portugal, REC and Hungary.

Cultural heritage: while most delegations felt that cultural aspects of the environment were important, some (e.g. UK, Ireland, Germany, Denmark) felt that a term like cultural heritage would be too broad. Ireland pointed out that music, dance and language were parts of cultural heritage but would not generally be thought of as part of the environment.

Historical monuments: Germany, supported by Ireland, felt that 'historical monuments' was too broad, i.e. not all information about historical monuments should be covered. IUCN proposed 'cultural monuments' as an alternative. Denmark felt the term 'historical monuments' was too limited, in that it did not cover pre-historical or archaeological sites, and along with Uzbekistan and the Ukraine (which also wanted 'natural monuments'), supported the IUCN proposal. The ECOs felt it was important to ensure that the definition covered great houses and parks of historical interest, eg the places where Pushkin or Tchaikowski had lived.

The built environment: The ECOs, supported by Denmark, argued that built structures should be referred to explicitly. This was initially opposed by the UK, which doubted whether all buildings, and all parts of buildings, should be covered. Germany was also against including 'built structures'. REC suggested 'the artificial environment built by man', and pointed out that such a phrase would cover dams, highways, bridges etc as well as buildings.

Socioeconomic conditions: The UK, Germany and Russia were opposed to including this, at least as initially proposed (an element of the environment). The ECOs and REC spoke in support of keeping 'socioeconomic conditions', the former citing the Espoo Convention (which refers to socioeconomic conditions) and giving examples of where this would be important. Italy, supported by Denmark, Ireland and Austria, were in favour of a reference to socioeconomic conditions but not in the manner proposed.

Outer space: The proposal from the ECOs to include outer space was strongly opposed by Russia, which argued that there were already special mechanisms and instruments dealing with outer space and put forward the idea that the Convention should only apply to the parts of the environment which are under the sovereignty of ECE states. The Chair rejected this interpretation of the scope of the environment, citing the Stockholm Declaration which establishes common responsibility for areas outside the jurisdiction of states. The ECO's example of information on radioactive debris from a recent Russian spaceship accident did not persuade Russia to shift from its position. The UK was also opposed to a general inclusion of information on outer space. Denmark supported the inclusion of outer space, and Austria to the extent that the information involved environmental impact (on Earth?). IUCN referred to annual meetings in Vienna on the subject of outer space as a useful reference for the discussion, and the UK to a 1971 instrument on outer space.

Other elements: The ECOs had proposed that everything under the surface of the earth should be covered (the UK suggested in the informal meeting that 'land' should cover this). Denmark referred to the deep sea bed, but said it was not proposing to include this, on the understanding that the list would be preceded by 'inter alia' (i.e. non-exhaustive).

Positive and negative effects on the environment: The ECOs argued for the deletion of 'adversely' in the Secretariat's draft, so that activities, measures etc with positive effects, or where it was not known whether the effects would be positive or negative, would be covered as well as those where it was known the effects would be adverse. This was initially opposed by Germany but was acceptable to most delegations It was suggested by the UK that having deleted 'adversely', there would no longer be any need to have a separate provision (as in the EU directive) covering activities, measures etc designed to protect the environment. Initially, the ECOs defended such a provision on the grounds that some measures designed to protect the environment would be of a preventive nature and would therefore, if successful, not so much affect the environment as prevent other factors from affecting it, and would consequently require a separate provision. However, the resulting draft did not include this.

Proposed measures (policies, plans, legislation etc): Several countries (Italy, Germany, UK) had problems with proposed policies or legislation being covered, asking at what point a draft policy or draft legislation would be included. The ECOs argued that these elements should be in the definition, irrespective of the extent to which public participation in the formulation of legislation or policies was to be required; and that the question of at what stage such information would become available to the public would depend on the later provisions of the Convention, eg the exemption of internal communications or material in the course of completion. Latvia was in favour of initial working drafts being excluded, but official drafts being published and circulated. Albania, Denmark, the Netherlands and possibly Belgium supported the inclusion of information on legislation, policies, plans and programmes, and Albania proposed the addition of strategies (a point which was reinforced by the Chair during the final plenary).

Along similar lines, Germany had reservations about the phrase 'likely to affect' but it was pointed that actual activities, measures etc, as well as proposed ones, could have effects in the future, and that a similar phrase is used in the EU directive.

Information used within public participation processes: Italy was opposed to including information currently being used within public participation processes within the definition of environmental information. This was linked with Italy's view that whereas the environmental information covered in the definition would be available (subject to the exemptions) to any person, the public participation procedures should be available only to affected persons and NGOs. Information sought or used in connection with a public participation process should be addressed in the public participation parts of the Convention.

Italy was broadly supported in this approach (excluding from the definition information being used in a public participation process) by Russia (which wants the Convention to only cover 'specific' decisions), Germany and the UK. Italy, Germany and the UK were also against including 'economic or financial analysis used in decisionmaking' in the definition, for similar reasons, but Italy wanted this information to be available (and included in the definition?) where the relevant decision had already been taken. Denmark also felt there was a relationship between these aspects of the proposed definition and the public participation provisions, and supported Italy's approach with the proviso that the matter should be re-visited after the Article 5 discussion.

Against this, the Netherlands felt it was not useful to make a distinction between information used inside or outside of an environmental decisionmaking process, giving the example of draft legislation which must be published but where there is no right of participation (in the Netherlands at present), so a person could not rely on getting this information in the course of exercising public participation rights.

The ECOs said that a central theme of the Convention was that information was required in connection with participation processes, so it would be ironic to exclude such information from the definition of environmental information; and that even if some aspects of public participation processes (such as notification provisions) were only to apply to affected persons and NGOs, the rights of access to information within those processes should be 'any person' rights, as the information would in any case be in the public domain. The ECOs also warned that treating such information separately raised the question of what terms of access (time limits, limited exemptions, reasonable charges etc) would apply to it - would Article 3 provisions apply, or would there be different provisions parallel to those in Article 3?

It was agreed that for the time being information used within public participation processes would not be included within the definition of environmental information, with the proviso (pushed for by Denmark and the ECOs) that the possibility of including it would be kept open until after the discussion on this issue within the context of Article 5.

 Voluntary/negotiated agreements: The ECOs proposal to include information on voluntary agreements was for the time being not opposed by any delegation. (Belgium preferred the term 'negotiated agreements'; the UK, 'voluntary'.)

4.12 New draft on definition of 'environmental information'

After the plenary discussion on Days 1-2, a small (six-person) drafting group was established to produce a new draft of the definition, taking into account the views that had been expressed. This group was chaired by Jerzy Jendroska (Poland) and also included representatives from Albania, Germany, Italy, the UK and an ECO representative (JW). Russia was invited to nominate a representative but declined. The new draft was presented to the plenary on the final day for brief reactions and will form the basis of future discussions.

The new draft is attached as Annex 2. Its main features are:

- There are no limitations on the form in which information covered by the definition exists, provided it is in 'material' form.

- Two options are presented for the elements of the environment: a non-exhaustive list somewhat similar to a slightly expanded version of those in the EU directive and the Espoo Convention; and a short, exhaustive list.

- Information on activities or measures with both positive and negative effects on the environment are covered (not just those with negative effects as in the original draft), and factors affecting the environment (noise, radiation) have been added in here.

- Legislation, policies, programmes and plans have been explicitly referred to as examples of 'measures', along with (in square brackets) voluntary agreements, and economic or financial analysis used in environmental decisionmaking.

- Proposed activities, measures etc have not been included, with the possibility of returning to this matter after the discussion on Article 5.

- Activities or measures designed to protect the environment have not been included, on the understanding that they should be covered by activities or measures affecting or likely to affect the environment.

- A new sub-paragraph includes within the definition environmental impacts, and impacts of the aforementioned factors, activities or measures, on a number of other factors, namely human health and safety, socioeconomic conditions, cultural heritage and quality of life. Information necessary to assess these impacts remains in square brackets.

4.13 Initial plenary reaction to new draft text

Delegations indicating a preference for Option 1 (longer, non-exhaustive list of elements of the environment) were: Slovenia, Romania, Denmark, Netherlands, Belgium, Portugal, Austria, Lithuania, Latvia, the ECOs and possibly Hungary.

Delegations indicating a preference for Option 2 (short, exhaustive list) were Germany, Poland and Armenia.

Some delegations (Germany, Portugal, Netherlands) entered reservations over the words 'such as' which had replaced 'inter alia'.

Romania felt 'biodiversity, flora, fauna' were overlapping terms. Denmark proposed replacing them with 'biodiversity and the components of biodiversity'; Hungary, with 'living organisms'.

Latvia reiterated its problem with the term 'land'.

Slovenia proposed the addition of 'and the interaction among these elements' at the end of sub-paragraph (a), noting that a similar phrase had been used in the Secretariat's draft.

Poland proposed to add 'pollutant releases' alongside noise and radiation, and Armenia 'vibration'.

Italy proposed to add 'any information that has been used in an environmental decisionmaking process', wishing to distinguish this from information which was still being used in such a process.

Spain supported Italy's distinction between information on the state of the environment and information used in environmental decisionmaking processes.

The International Commission on Environmental Law (ICEL) argued that any information to which a member of the public is entitled within the framework of public participation in environmental decisionmaking should be explicitly covered in the definition.

Italy had problems with sub-paragraph (c) (impacts of environment etc on human health etc) but did not elaborate. Germany had a problem with 'quality of life' but had no problem with the 'information necessary to assess these impacts ...' in square brackets in sub-paragraph (c). Lithuania and Latvia felt it unnecessary to refer to epidemiological and toxicological data.

4.2 Environmental decisionmaking

The Chair of the EDM working group presented the written report on the progress of that group.

The Russian Federation noted that the definition is very important for a "politicized" convention such as this. The definition must ensure that the scope is satisfactory from the point of view of interests of state parties and appropriate international standards (Sofia Guidelines). These matters are best resolved by national legislation so the definition must refer to national legislation. There should be a proviso that it does not include judicial, legislative, or other general environmental standard setting or acts (only specific) because the procedures laid down in national legislation must remain faithful to the Sofia mandate. This does not preclude a non-binding recommendation concerning other types of decisions.

The REC introduced the joint paper of the ECO and REC delegations related to the main issues of Art. 5 (See Annex 4).

Denmark observed that some of the questions can only be answered when dealing with the substantive provisions. The types of decisions will be defined in the substantive articles. For the purposes of the definition, the only ideas that would be important are 1) only decisions taken by public authorities, 2) not those taken by courts or public authorities acting in a judicial capacity, and 3) only decisions taken by the executive.

The ECO delegation agreed that the best way to proceed would be to look at the specific and general decisions in turn and the appropriate corresponding methods of participation to be required. Then the working group can return to the definition.

The UK stated that distinctions between categories of decision can be done either in the definition or in Art. 5 and the legal substance will be the same. One issue not addressed by the drafting group was the environmental component. Perhaps it would be best to wait for the results of the environmental information drafting group.

Italy felt that it may be important to define decision-MAKING due to the importance of the concept of process. Public participation is something integrated into the process of decision-making. The Convention must refer to the relevant environmental information to be provided during the decision-making process.

The ECO delegation expressed support for general provisions applicable to all decisions. It noted that it remains unclear what categories are to be included, suggesting discussion of the substance of public participation applicable to the categories where there is general agreement.

Slovenia emphasized that the Convention deals with public participation in a process. The Convention might want to include the public in a process even if the end result is not a formal decision. Also, too many Annexes are burdensome and threshholds cause interpretative problems.

Regarding threshholds, the UK stated that the purpose of this Convention is not to address every decision taken by public authorities -- there must be some criteria so that those decisionmaking procedures with minimal impact are not included. It is also crucial that local government bodies are NOT excluded from this Convention. The REC suggested focussing on decisions which might have an 'appreciable' impact while Spain proposed 'potentially significant'.

Slovenia felt that the distinction between general and specific was difficult. It would be better to examine processes (administrative process, planning process, etc.). These processes may result in general or specific decisions.

Denmark stated that when starting a process, it is not possible to anticipate the result, or if there will be a result. By defining where public participation starts, irrespective of what may happen at a later stage, the Convention will protect the right of public participation.

After the break, the Chair inquired as to whether there should be a differentiation between general and specific decisions. UK, Austria, Ireland, Spain, Poland, Portugal, Czech Republic, Denmark, Latvia, and Romania supported such a distinction. Denmark indicated that it would still be necessary to define the types of decision. The ECO delegation supported Denmark, indicating that the words may be confusing so it is more helpful to look at the specifics of each type of decision. Finland said that although the distinction might be helpful to the discussion, it does not mean that there is no need for substantive rules regarding general decisions. The UK proposed that where the result of a decision is the authorization of a particular undertaking, it is a specific decision.

Slovenia expressed concern that the only purpose of making the distinction would be to exclude general decisions from the ambit of the Convention. Belgium stated that a decision regarding the exclusion of the general category should not be taken at this time. The distinction is merely a tool to help conceptualize.

The ECO delegation summarized its understanding of what the working group had determined by listing the decisions to be included in the general category (all law making and rulemaking, some policies, plans, programmes, and some voluntary agreements) and the specific category (some voluntary agreements, some policies, plans, programmes, and permitting). The ECOs did not agree that international institutions and agreements should necessarily be outside the scope of the Convention.

[DAY 3]

The Chair introduced the discussion by noting that the present structure of Art 5 was not satisfactory to a number of delegations. Italy and the Netherlands suggested a different approach, proposing to make a distinction between general and specific decisions and create subgroups for analytical purposes. Whereas Italy proposed to start by identifying different categories of decision, the Netherlands proposed to start by identifying general provisions which would apply to both general and specific types of decisions. The Chair suggested to use the Italian approach as a basic structure to start, then see how the Dutch approach could be incorporated.

The Italian delegation presented its written proposal for several draft articles replacing Article 5, emphasizing that Italy supported the structure it was putting forward, but that it was not necessarily advocating the substance of the provisions.

The proposal involved having separate provisions for decisionmaking relating to i) proposed activities, ii) existing activities, iii) plans and programmes, and iv) law-making and rulemaking. The range of activities covered with respect to i) and ii) would be set out in an annex which would include all the elements contained in the equivalent annexes in the EU directives on EIA and IPPC. The types of information to be made available in connection with i), ii) and iii) would be set out in three separate annexes. Public participation methods which 'may' be used in connection with i) would also be set out in an annex. Another annex would contain a definition of plans and programmes.

The discussion was mainly limited to the question of whether these were useful categories to work with (and also some rather academic discussion on whether the categories were 'specific' or 'general').

The Netherlands, supported by Belgium, felt it was not necessary to have separate articles dealing with proposed and existing activities.

Italy said it was fairly neutral on the question of whether legislation should be included as a category (in the informal group, it had said it did not want binding provisions in this area).

With respect to i), Denmark felt there was some overlap with the EIA process, and suggested three possibilities:

- that insofar as public participation is included in EIA, there is no need for a special system of public participation;

- that there be two systems: public participation in general and public participation under the Convention;

- that the Convention supplements existing public participation provisions in EIA to the extent that these fall short of the Convention's provisions.

The Chair suggested that policies and strategies should also be considered, alongside plans and programmes. The ECO delegation raised concerns about the definition of plans and programmes put forward by Italy, which it regarded as too restrictive.

It was agreed that voluntary agreements should be covered, but Denmark, supported by Italy and the Netherlands, argued that they could fall under the heading of general or specific decisions and felt they should be covered within the other categories rather than being listed as a separate category.

The ECO delegation raised the issue of international decisionmaking, proposing it as an additional category and mentioning its written proposal for the definition of public authorities (which refers to 'international bodies under the control of Parties'). The Chair suggested that it would not need a separate category as international decisions would fall under the other categories. Italy and Germany agreed with the Chair and were in favour of discussing this matter in connection with the definition of public authorities. Denmark, supported by the UK, said this would be a difficult discussion, asking what the term 'under the control of' meant in the ECO's definition. IUCN referred to a recent decision of the UNGA to adopt a new proposal from ECOSOC on NGO participation in the UN system. Slovenia warned that it would be important for international decisionmaking to be explicitly recognised, because international policies do not automatically become part of national policies.

REC proposed that the list of categories should not be exclusive, so that other decisionmaking types could be added later.

4.3 Time limits on information requests

The only other substantive issue discussed in the plenary was the question of time limits applying to information requests.

At the informal meeting, the ECOs had presented a fairly elaborate four-pronged proposal on time limits, covering:

i) the need for a swift response, preferably with but sometimes without the actual information (1 week proposed);

ii) the need for a public authority to stay in touch while a request was being processed (maximum intervals 2 weeks);

iii) the actual provision of information (max. 4 weeks); and

iv) provision of information in emergency situations (immediately and without delay).

This did not gain any support during the informal meeting.

Belgium and Germany both proposed a single time limit of 2 months, as in the EU directive, for the provision of the information. (The EU directive only requires a response within that period. Unlike the Secretariat's draft, it is ambiguous as to whether the actual information itself should be provided within that period. However, when asked what their understanding of 'response' was in this context, all delegations which spoke on this matter agreed that this should be interpreted as provision of the actual information.)

The UK felt the ECO proposal was too elaborate and would not work, even though it was quite logical. The UK seemed to be willing to consider a single deadline of six weeks, as in the Secretariat's draft, but wanted the time period to commence when the request was 'received' rather than when it was 'submitted'. Both the UK and Germany were opposed to the time limit for refusals being shorter than the time limit for providing information, arguing that it could often take as long or longer to establish whether a refusal was justified or necessary as it took to provide the information.

The ECOs were invited to come back with a simplified version of their proposal, to be considered alongside the other options.

In the plenary, the ECO coalition presented the outline of a simplified version of the written proposal on time limits. This would involve an 'as soon as possible' requirement backed up by:

i) a relatively short time limit for providing a response to an information request (which could include acknowledgment plus notice of length of time needed to provide the actual information, refusal of the request plus grounds, onward referral of request to a different public authority, attempts to clarify request etc) and in most cases, the information itself; and

ii) a slightly longer time limit on the provision of the information requested where it could be shown that the public authority was unable to comply with the shorter timeframe.

The broad outline of this approach was widely supported (Denmark, Hungary, Netherlands, Finland, Austria, Ukraine). Denmark, Hungary, the Netherlands and Finland spoke of their respective national systems, to illustrate that the approach outlined in the ECO proposal could work in practice. In Hungary, information must be provided within 15 days, and if the request is to be refused, this must be done within eight days. In Finland, the information must be given as soon as possible, which has been interpreted by the Ombudsman to mean on the same day or within the next two to three days. The Netherlands has a deadline of two weeks for providing information, with the possibility of extending this to 30 days. Austria and the Ukraine both supported a short deadline for straightforward requests and a longer timeframe for more difficult ones. The Ukraine suggested a 10-day deadline for letting the requester know how long it would take to provide the information and a longer deadline (up to one month) for actually providing it.

Germany described the ECO proposal as interesting and showing the way to a possible compromise but for the time being preferred to stick to the 2 months in the EU directive. Later, Germany did refer to the possibility of having a shorter timeframe for simpler requests.

The UK did not repeat its earlier reservations in the plenary but suggested that local authorities, who were not separately represented in the negotiations, might have more difficulties in complying with short deadlines than central government.

Italy had some doubts about having shorter time-limits for refusals, and said it still had problems enforcing the 2-month time-limit in the directive, not from lack of political will but for administrative reasons.

Ireland described the ECO proposal as interesting and spoke about how its time limits on the provision of information had been halved from 2 months to 1 month, but with provision for extending this to two months for difficult requests.

4.4 EU Role

On behalf of the EU Presidency, the Irish delegation informed the meeting that the European Commission had on 26.11.96 adopted the text of a request to the EU Council for a mandate to negotiate on behalf of the Community on areas falling within Community competence. It had not been possible for the Council to deal with this during the Irish Presidency, but it was expected that the matter would be brought to a conclusion during the Dutch Presidency.

[Additional note: The next EU Environmental Council meeting is likely to take place at the beginning of March 1997, i.e. after the fourth session of the Working Group on the Convention. In theory, the request could be approved by any EU Council meeting, not just the Environment Council, if it were just a matter of rubber-stamping it. In this case, some member states are likely to want to discuss the terms of the mandate. So it is very unlikely that there will be a mandate in place by the fourth session. For anyone with a particular interest in this subject, the text of the request for a mandate is available from me (JW) but only in paper form (7 pages, fax or post) - let me know if you want it. Alternatively, you could try getting it from one of the Commission offices, as an experiment in access to information. Another useful source is a draft paper on the implications of an EU mandate in this process, prepared by Julia Harris of CIEL. This is available by e-mail.]

5. COUNTRIES OVERVIEW

ALBANIA: One of the most consistently positive delegations, in both the 'information' informal group, the small drafting group and the plenary itself.

ARMENIA: Unfortunately its written comments were not available in English and were not circulated. Wanting short, exhaustive list for 'info' definition. Tendency to support Russian line of leaving much to the national level.

AUSTRIA: Emerged as one of the most positive delegations, supporting a number of proposals to broaden the definition of 'environmental information' and use of differential time limits for info requests. However, Austria felt the public should have to prove an interest to avail of participation rights.

BELGIUM: Again, one of the more progressive delegations, supporting a reasonably well elaborated definition of environmental information, and wanting the Convention to apply to general decisions (eg policies, programmes and plans) as well as specific ones (permits etc). Its main 'black mark' is on time limits for information requests, where it proposes a single time limit of 2 months - though now it concedes that this should apply to the actual provision of the information, not to a 'response' in the minimal sense.

DENMARK: Overall, playing a positive and very active role in the 'information' discussions. Supporting non-exhaustive definition of environmental information and suggesting or supporting useful additions to the list of elements. Was instrumental in keeping door open to further discussions on whether pp info should be in env info definition. Supporting ECO approach on time-limits. More mixed performance with respect to public participation, on the one hand supporting right to participate without having to prove an interest, on the other, dragging heels on the notion of public participation in preparing legislation or in international decisionmaking processes.

FINLAND: Generally positive and slightly more active than before (e.g. supporting ECO proposals on form of information, addition of landscape, time limits). Also in favour of public participation provisions not being limited to 'specific'-type decisions. Sometimes playing a neutral or clarifying role.

FRANCE: Not very active, but showing some reluctance about the idea of the Convention doing something more than EU legislation (e.g. against working with ECO proposals at one point, in favour of a very short definition of environmental information or else leaving it to be decided at national level).

GEORGIA: Not very active in intervening, but circulated a useful paper with quite progressive proposals on the text.

GERMANY: Most of the German interventions (and it was one of the most active delegations) were aimed at limiting the scope of the Convention. It was in favour of a short, exhaustive list of elements in the environmental information definition and opposed many of the elements for this definition proposed by the ECOs and others. It opposed proposals for practical arrangements facilitating information requesters (eg designated officials, onward referral of requests, low charges or charge waiver provisions, right to inspect information, right to specify form of information). Despite this, Germany showed more flexibility than on previous occasions. For example, it was willing to accept the idea of some public participation in law making or rulemaking, and was not opposed to the inclusion of information necessary to assess environmental impacts on health, quality of life etc. in the definition of environmental information.

HUNGARY: Quite positive on environmental information definition and supportive of ECO proposals on time limits.

IRELAND: Showed willingness to reflect on some of the ECO proposals and supported some good amendments while reserving its position on others.

ITALY: played a very active role in the environmental decisionmaking discussion, presenting a paper which served as the framework for discussion on this issue. Seems keen to limit participation rights to affected persons and NGOs. Was main proponent of keeping information currently being used in a public participation procedure out of the definition of environmental information. Seems to be opposed to binding provisions requiring public participation in law-making and rule-making, and against citizen suits.

LATVIA: Supported the more elaborated definition of environmental information.

LITHUANIA: Also supported the more elaborated definition of environmental information, and the ECO proposal for fee waiver provisions.

NETHERLANDS: Played a constructive role, taking a progressive stance on time limits and definition of environmental information (but disappointingly reserving its position on the 'non-exhaustive list' issue). It was the only governmental delegation to argue clearly against the exclusion of information being used in a public participation process from the environmental information definition. In the 'environmental decisionmaking' discussion, Netherlands favoured having no threshhold for decisionmaking, and a set of general requirements applying to all environmental decisionmaking (in addition to specific requirements applying to certain categories of decisionmaking). Vaguely supportive of ECOs on international processes.

POLAND: Handling the Vice-Presidency mantle well. The main disappointment was its support for the shorter, exhaustive list of elements for the environmental information definition (Option 2).

PORTUGAL: Supported ECO proposals on several occasions on 'information' issues (biosphere, natural heritage, general approach), prefers more elaborated definition of environmental information but has a problem with 'such as'. With respect to environmental decisionmaking, Portugal was broadly supportive of public participation (including NGO participation) in international processes, and recognised distinction between law-making and rule-making (which most other delegations glossed over).

ROMANIA: Not very active but could support ECO positions in future. Supported longer non-exhaustive list for environmental information definition. Not keen on citizen involvement in enforcement.

RUSSIAN FEDERATION: Another hot contestant for the cactus award. In addition to opposing many useful proposals, Russia at several moments came out with sweeping statements to the effect that crucial provisions are best left to be decided at national level, and that it would not be able to change its Constitution to accommodate the Convention. It repeatedly referred to the Guidelines, at one point saying (incorrectly) that the Working Group had no mandate to take the Convention further than these.

With respect to environmental decisionmaking, Russia is only willing to consider public participation in specific administrative decisions, and is opposed to any requirement for public participation in law-making, rule-making (e.g. setting environmental standards), programmes and plans, and international processes (including national policies which will be presented in international fora). Russia also opposed citizen involvement in enforcement and the right to participate without having to prove an interest (even though both these notions already exist in its national system).

There is a sense that Russia has not really engaged in the detailed dialogue of the negotiations, as if it is reluctant to accept the whole concept of such a Convention. The delegation seemed to be unprepared and may have been taking a negative tone to slow down the process and give itself time to catch up. On the last day, the Russian delegation indicated that it would submit a document on the Convention, perhaps implying that it will be better prepared next time.

SLOVENIA: Played positive role in environmental decisionmaking discussion, among other things supporting explicit inclusion of international processes, and the inclusion of decisions and processes of a general nature. Supported longer, non-exhaustive list for environmental information definition, and addition of interaction of elements to that list.

UK: Again, one of the most active delegations, frequently blocking but sometimes supporting progressive positions. For example, on environmental information, it was against a non-exhaustive definition, cost waiver provisions, access to actual documents and designation of information officials, and supported the traditional exemption of commercially confidential and voluntarily supplied information. On the other hand, it supported the rights of the requester to specify the form in which information should be provided (if held in that form), was against the definition imposing any limitation on the material form in which information might exist and in general seemed willing not to be constrained by the EU directive.

UKRAINE: Played quite a positive role, taking progressive stances on time limits and environmental information definition.

OTHERS: BULGARIA, CROATIA, CZECH REPUBLIC, ESTONIA, GEORGIA, KAZAKHSTAN, KYRGYZSTAN, NORWAY, SPAIN, SWEDEN, SWITZERLAND, TURKEY, UZBEKISTAN: These countries kept a low profile, as did the EUROPEAN COMMISSION.

ABSENT: ANDORRA, AZERBAIJAN, BELARUS, BOSNIA & HERZEGOVINA, CANADA, CYPRUS, GREECE, ICELAND, ISRAEL, LIECHTENSTEIN, LUXEMBOURG, MACEDONIA, MALTA, MOLDOVA, MONACO, SAN MARINO, SERBIA & MONTENEGRO, SLOVAKIA, TAJIKISTAN, TURKMENISTAN, USA.

6.1 Election of Vice-Presidents

Jerzy Jendroska (Poland) and Y. Pelovsky (Bulgaria) were elected as Vice-Presidents of the Working Group. The election of Jerzy Jendroska is quite significant, in that he is from the Polish Environmental Law Association and was co-opted onto the Polish government's delegation as an NGO representative.

6.2 Access to justice workplan

Alongside the two informal groups on information and participation, a third group is planned on access to justice. The Chair informed the meeting that he had invited Marc Pallemaerts (head of the Belgian delegation) to consider how the work in this area might be organised.

6.3 Future meeting schedule:

The next meeting of the Working Group will take place 19-21/2/97. It will be preceded on 17-18/2/96 by meetings (in parallel) of the informal groups on information and environmental decisionmaking respectively.

No change was proposed for subsequent meetings, previously agreed as follows:

17-20/6/97

7-10/7/97

29/9 - 2/10/97

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JW/JH

16th January 1997