At the third session of the Working Group, types of decisions had been identified and separated into different categories, with a view to attaching public participation provisions appropriate to each category. Italy had proposed to divide the original Article 5 (in Draft Elements) into several new articles corresponding to these categories, the first of these articles (the new Article 5) dealing with licensing/permitting-type decisions for proposed activities.

The fourth session of the Working Group concentrated on the new Article 5, first discussing Italy's proposed text in the informal group, then discussing an amended text in the plenary, and finally resuming the discussion in the informal group, which resulted in another draft text.

4.1 First informal group meeting, 17-18/2/97

Peter Roderick and Sandor Fulop (ECO Coalition) and Magda Toth Nagy (REC) participated in this group. Before the meeting, a proposal was prepared by the ECO Coalition with the support of REC (Annex 15 to this report). The proposal was distributed in the informal group. Italy presented a more detailed version of its December proposal, dealing with different specific decisions including public participation in decisionmaking concerning a proposed activity, an existing activity; plans and programmes; and lawmaking or rulemaking (Annex IV to the ECE secretariat's report on the 3rd session, attached as Annex 13 to this report). Netherlands also prepared a new proposal based on their December one, containing: "General provisions on public participation in procedures concerning environmental decisions" which are applicable generally, and specific procedures depending on "authorization of the undertaking of an activity", concerning "general rules" and "plans and programmes" (Annex 14 to this report).

In the informal group, there was a short general discussion on the structure of Art. 5, then on which proposal should be the basis for discussion: the Italian or the Dutch. After this, the group focused on the discussion of a new text on Art. 5 on public participation for proposed projects and activities. On the second day, the text of the new Art.5 on proposed activities was discussed further and the meeting managed to finalize agreement on half of the text.

General issues related to Article 5

Structure: The Chair (Alistair McGlone, UK), in his summary of the discussion in the previous meeting, stated that there was agreement that decisions should be divided into specific and general decisions and that these latter might be covered by legal instruments, non-binding instruments or annexes, or might not be covered at all. There were several suggestions on the definition of environmental decisionmaking, the possible contents of Art. 5 and proposals for the structure of Art. 5 (Italy, Netherlands, ECOs and REC).

The ECOs argued that it was difficult to understand the difference between these two categories (specific and general) and suggested to start discussing the different type of decisions. The ECO Coalition said it had submitted a proposal with REC but could accept working with the basic framework of the Italian proposal. It proposed to keep general and specific decisions and bring them together with the Italian and Dutch proposal.

REC confirmed the position of suggesting general and specific provisions within Art. 5 where the general provisions would contain minimum standards for public participation applicable for all types of decisions, and the specific provisions would contain specific, concrete details applicable to individual types of decisions.

The Dutch delegate said that the difference between the Italian and the Dutch proposals is in the system: the Italian proposal has specific articles for specific proposals. The Dutch proposal has three parts: 5a, 5b, 5c. 5a looks at authorization, instead of proposed and existing projects. In 5b and 5c there is not such a big difference. Denmark suggested to amalgamate the two.

Germany repeated its view that legislation should not be included since it belongs to the authority of the Parliament.

Italy suggested that general provisions on all three aspects of the Convention should be placed in Art. 2.

The ECOs suggested to work on the Italian and Dutch proposals together. Netherlands agreed with this and suggested to mark all provisions which could be candidates for general provisions. The group decided to use the Dutch approach of having general and specific provisions, and worked with the Italian and Dutch texts.

Scope of decisions (5.1)

France thought that the UNECE draft was aiming for too high standards, at a time when the EU is going down e.g. with EIA. It wanted to keep the high standards only for the projects of national importance and lower standards for others, and suggested to add new methods like public inquiry.

The Italian proposal suggested that this part of the Convention be applicable for projects listed in an Annex. The Dutch proposal linked it to an authorization. In the earlier discussions, there was a suggestion to tie the applicability to "significant impacts" and some suggested that there should be no threshold.

Netherlands thought that the Italian proposal was based on EIA and IPPC Directives, which could be supported but if, the threshold is "significant" or "adverse" impact it would be difficult to define what it means; therefore it would be better not to have a threshold.

Denmark supported a positive annex including what should be covered. It could also be a catch-all category, not a complete annex: e.g. other activities as outlined in the annex, having major impact. Then it would be necessary to see whether the activities that are not mentioned in the annex have the same importance or not. It thought the Italian proposal to be a good basis since it distinguishes between existing and new activities.

The ECOs argued that the Convention is about public participation and not EIA and IPPC therefore should not be driven by those mechanisms. The aim is to facilitate participation of the public. ECOs have a problem with the Italian proposal. The public, in principle, should be able to participate in any project regardless of the size. The details of participation is a different issue but the right of the public to participate should not be lost, allowing them only to participate in big projects. The ECOs were more sympathetic to the Dutch proposal linking it to an authorization. Anything more than a "de minimus" impact should be covered. The ECOs supported the idea of lists but proposed a negative list, i.e. everybody should have the right to participate except in a case which was listed and where the impact was less than "de minimus". It could be left to the individual countries to define the list.

Germany was against annexes because if there was an annex, there could be less participation than already exists in some countries. France was in favour of a positive list, and suggested having two of them: one for maximum standards, one for minimum standards. Denmark supported the Dutch approach, was against thresholds and said that every project having an effect should be tackled.

The Netherlands supported the German and ECO positions. It has to be decided if it is minimum harmonization type of Convention or not. The parties can always go further but it makes also no sense to limit the scope of the Convention when the EU already works on broadening for example the scope of EIA for smaller projects. Parties could decide on their own which types of projects or activities fall under the scope of the Convention. A negative annex based on national legislation would be helpful.

Italy argued that the Convention should apply for all countries, therefore their view was to have different obligations for smaller and larger projects. Art. 5 does not define the scope of the Convention only for one specific decision.

Germany said it could also accept a minimum list. Denmark was against having lists and supported leaving it to states to define where they want public participation. The ECOs suggested not to leave it to the states but use the idea of a diverse list for all activities which have more than a "de minimus" effect. The ECOs were reinforcing the principle that some kind of public participation should be possible in all kind of activities. Italy agreed that that there should be minimum requirements for certain issues: for example for information that must be available concerning proposed projects. Netherlands agreed that an annex can be useful if a minimum is required. Russia was also supporting the minimum requirements but was against mentioning explicitly in the Annex that it is based on the EU legislation.

The ECOs repeated that it would be good to have a positive and a negative annex. In this case the negative annex could include projects which are not covered by the other list but have more than "de minimus" effects. Italy supported the ECO proposal.

The group could not finalise Art. 5.1 and agreed to include in the new text two proposals: Italy's from CEP/AC.3.1 and the Chair's, reflecting the group's discussion. The ECO proposal was put in the footnote as an alternative suggestion.

Scope of the "public" (Art. 5.2 Italian proposal, 5a.1 of Dutch proposal)

Netherlands suggested to use "public concerned" , while Italy proposed "who has an interest or who is concerned". According to Netherlands, "Public concerned" basically covers those "who have an interest or who are concerned", but Italy thought that if "public concerned" is used, it has to be defined.

The Dutch argued that "concerned" is more often used and the parties will have to define what it means. Denmark supported "concerned". The ECOs suggested to use "public concerned without proving an interest", since everybody who wishes to participate should be able to do so. Netherlands was against adding this because it considered "public concerned" was already broad enough. Denmark agreed with this.

The Italian proposal was put in square brackets.

Early involvement of the public (Art. 5.4)

The ECOs suggested that before notification starts, the public should be already involved. Therefore Art.5.4 (Italian proposal), which states "public participation starts early in the decisionmaking", should be moved up as 2nd paragraph. Before an application is made, the prospective applicant should identify the local community and should be obliged to enter into discussion with them in order to establish together the forms of public participation. It is also important to define criteria for public participation in the convention, how it should happen. The ECOs prepared a proposal dealing with this and other issues (see Annex 15 to this report).

The Chair was against going into such details in the Convention and suggested that these should be dealt with by the conference of the parties at a later stage.

Notification (Art.5.2)

Netherlands suggested that a copy of the application should be part of the information that is given to the public during notification. Italy suggested to include a list in an annex defining what kind of information should be given to public. Denmark proposed that the Dutch and Italian suggestions should be merged. Italy did not agree, explaining that the Dutch proposal is limited to emissions while the Italian one requires also that the public should be informed about the possible impacts of the proposed project for example on the landscape. The Dutch suggestion "on possible impacts" of the decision and sources of emissions and significant effects of the emissions on the environment" was put in square brackets.

The ECOs supported the Italian solution but proposed to add to the notice "in an adequate, timely manner", public notice or individually, as appropriate, at the time of the application (the same time as the application is submitted). They also suggested to include a provision that NGOs who ask to be on a standing list should be notified of all proposed activities within specified categories. This was put in a footnote. Also they proposed to add to 2(a): "including a copy of the application" depending on whether it would be in the Annex or in the text of the article.

Netherlands and Italy supported this latter proposal. Denmark doubted that giving information at the time of the application would work since the authorities might need to ask for further information from the developers. It said the system should be reasonable and also acceptable to developers. Italy was against the early scoping process, saying that some countries will never accept the public involvement in the scoping phase. If notification is at an early stage, no official application is available yet at that time.

The UK could not accept that the "draft decision" was to be made available in 5.2(b) of the Dutch proposal.since it would presuppose that there has been some kind of decision made. It suggested to keep "the nature of the possible decision". Russia, Denmark, France and the ECOs also supported this, suggesting to put "decisions" (in plural). 'Draft decision' was put in square brackets.

The REC suggested to add to 5(2)b "including the public authority responsible for making the decision". Italy agreed and suggested to put it as a separate point in 5(2)c.

The ECOs suggested to include the idea of close co-operation between the developer and the community to choose the forms of public participation.

The REC later suggested to include in the information provided with the notification: relevant information regarding the environmental decisionmaking procedure including the commencement of the procedure, the opportunities for the public to participate including any locations for public hearings, an indication for the timeframe for submitting comments, an indication of what information is or will be available, an indication of the public authority from whom additional i formation can be obtained and to whom comments and questions can be submitted.

Netherlands said that maybe public hearings are not always needed and therefore suggested to insert "when appropriate" and keep from their proposal the "procedure to be followed" and also "who can submit comments".

Denmark agreed with REC on many points and suggested to add "public concerned" since this will define who can submit comments, "the envisaged procedure", "locations and time for public hearings". Several participants questioned whether public hearings should be mentioned separately since they thought it was giving preference to one method (Italy, UK) but Denmark and Netherlands supported keeping it with an addition of "that may be envisaged". There was also discussion as to whether such a provision should be so detailed or not. Some (e.g.Italy) thought it would be enough to have these details in an Annex; others (Netherlands, REC) thought if anyway it has to be defined somewhere , it is better to have it in the body of the text. The suggested logic of the article would be: what should be the standards for notification, information to be provided and then to describe legally guaranteed public participation possibilities. "The time and place of any public hearing" was put in brackets.

The ECOs and Netherlands said that, besides keeping "an indication of what information is or will be available" in 5.2 , it should also include some kind of specification on what kind of information should be available (reports of consultations, advice, other relevant documents) as contained in the Dutch proposal 5a.1, 2nd a,b,c. In a decisionmaking process, different information will be needed or generated at different times and this has to be accessible for the public. Italy insisted that this could be covered by an annex, Russia suggested to merge the Dutch suggestion in the notification part. The ECOs and Netherlands argued that the public should be kept informed throughout the whole decisionmaking process. It should be announced in the notification process what can be expected, then whenever there is such information, it should be open for inspection for example in public registers as in the UK. Denmark also supported that it has to be made accessible, not to oblige the authorities to send it out. Russia and Germany felt they would have problems with this. The ECOs with the support of Italy suggested that there should be also a clear mechanism to make such information accessible and that it could be put in 5.2 together with the specification of the information. Since some delegations had reservations, the text was put in brackets.

Reasonable timeframes (Art 5.3)

The ECOs suggested specifying time limits and to add "which will allow sufficient time for the public to prepare and participate effectively and continuously throughout the process". Denmark supported the idea but did not like " the different phases". The ECO addition was accepted.

Early commencement of public participation (Art 5.4)

Russia said it could not undertake to ensure early public participation, only to ensure conditions enabling public participation to start early. It also stated that any kind of measure should be related to national legislation. Italy announced that they will never accept this position.

Denmark suggested to delete legal, administrative and other measures. The ECOs agreed that states have the obligation to create the conditions for participation, which also means to pass the necessary legislation. The ECOs suggested that the principle of early commencement as a basic principle should be brought up to 5.2, setting the tone for the notification. Early commencement in the decisionmaking procedure could mean that participation actually begins before application. The ECOs announced that they will circulate a non-paper describing the idea of introducing in the Convention the pre-application scoping. Italy was against making reference to any application and said that public participation starts with notification, therefore at this stage public cannot yet participate. Denmark suggested "Shall provide for . early participation, at a stage ..." and leave out the reference to the decisionmaking procedure.

The Netherlands suggested that 5.3 and 5.4 should be candidates for general provisions, applicable for all types of decisions, and proposed to put such a footnote in the new draft text.

The ECOs suggested to also keep the original 5.4 from the Secretariat's draft as a candidate for general provision.('Each Party shall actively provide information on how public participation shall be implemented ...') Italy said it was not useful in this place, and Denmark supported retaining the content.

Forms of public participation (Art. 5.6)

The discussion centred on whether what had not been included from this paragraph already in other provisions should stay or be deleted. The Chair suggested that these elements had for the most part already been reflected in other parts. The ECOs and REC thought that though many of them could be seen as included elsewhere, it was necessary to spell out the kinds of public participation. Here no new laws are being created but to set out the forms of public participation is tone-setting and helpful. France supported keeping the paragraph as an important step towards a more democratic approach, adding that they want deep and progressive change in participation. Also these can be new obligations for some countries.

Principles, methods and field of application should not be separated. Denmark supported the paragraph but noted that the list was exhaustive and suggested to include 'inter alia' at the beginning. It also proposed to leave out e) which it considered to be confusing. Belgium suggested to combine d )and e). Italy thought that these are mostly covered by Appendix III already. Russia was against the paragraph, especially because of difficulty of applying it in legislation.

The UK was against including "to be heard" (a) and suggested to be consulted which is covered elsewhere by 'due account'. The REC and ECOs defended the term as a basic principle for public participation which should be included. Russia found it inspiring and self-evident. Italy was against. Netherlands thought that this would have relevance not only for specific decisions but also for plans and programmes where the public should be consulted and should be able to make objections. Denmark suggested to use legal terms. Belgium countered by saying that it has a legal meaning and it is more than a political notion, as it is included in the European Convention on Human Rights. Netherlands suggested to put it in the preamble, the REC argued for putting it in the general provisions on public participation, the ECOs suggested to replace it with to be involved.

The Chair summarized that the group considers that this concept is not necessary or may not be necessary to deal with here and proposed to put in footnote to this effect.

The ECOs suggested to leave out "when appropriate" from (b) "to propose alternatives, including the no-action alternative", but France, Germany and Russia were against. The Chair wanted to delete (b) as being covered by comments, but Belgium with the support of the ECOs and REC defended it as one of the types of comment that is important to include separately so public participation could be effective. Belgium suggested to incorporate it into (d). Denmark supported to keep it in and to delete "when appropriate", since if not needed the public authorities will not take into consideration. Italy was against saying that comments do not mean proposing alternatives even according to EU legislation. France agreed, being afraid of who would study all the alternatives. The Dutch proposed merging b, c, and d, the ECOs suggested to merge the rest but leave (b) separately. Italy suggested to merge c, d, and e. Denmark suggested to take out notification since it has been covered elsewhere. The ECOs suggested to add to participation at public hearings (e)"equally with all other parties" as there can be circumstances when the public does not get an equal treatment especially with the developer and experts. This was accepted in the form" equally with those appearing in the hearing".

The REC suggested to add "prevent and minimize" in (d) (along with 'mitigate'). Italy supported but said these are basically the same, so "prevent" was accepted. The ECOs wanted to add to (g) "to propose measures to monitor the impacts of the decision" "including public participation in monitoring" which was debated by Italy and France. The ECOs defended this, explaining that this would mean an additional possibility for public participation, and what is public participation worth if the public cannot even make suggestions on how to monitor or for its involvement in monitoring. The Convention should show flexibility in strengthening and introducing some new ideas. Finally Italy suggested to put it in brackets so that the door would be left open to keeping this in some other parts of the Convention e.g. saying that the parties encourage it but opposing a legally binding text. UK was also against the ECO suggestion arguing that (g) is too broad, there is no limitation on what it could mean and though the Convention should give broad rights for participation, it is better to have a brief list of general factors and simple wording. Similarly, the ECO suggestion to include a new sub-paragraph (h) on public participation in enforcement was refused by France and Italy. Belgium supported the proposal but said it should be addressed in Art. 6, under access to justice. The ECOs explained why it should be under art. 5 also, with an example: e.g. if a factory is breaking its permit conditions and the community is concerned, it can request a public authority to take an enforcement action; or local communities can make suggestions what to include in enforcement of a decision. Denmark said some aspects of how it should be monitored and enforced would be part of the decision anyway and it is odd to deal with monitoring or enforcing the decision before the decision is taken.

Discussion about annexes

The Chair proposed that perhaps suggestions like the above could be set out in the annex of public participation methods. This started a discussion on whether to use annexes and what kind. The Netherlands was against annexes which would complicate too much the use of the Convention and suggested separate guidelines. Italy was opposed to long lists, Denmark supported both the annex and the guidelines ideas as possible options and recommended that it also could be put as a task for the parties to develop methods for such arrangements in the future. The UK supported the idea that these could be guidelines or enshrined in another non-binding instrument. Netherlands was asking how then compliance of this article could be checked if regulated in a non-legally binding instrument. Denmark was also against annexes which are non-binding and suggested to have it in a separate soft law instrument. The ECOs said that the Convention is a tool to set out possibilities for public participation and should be clear about what is "good public participation" which may not be known or applied by many countries.

The UK then brought up the example of Espoo Convention, saying that the parties could produce instruments, which then will have to be amended from time to time. Italy insisted on having a "menu type" annex on public participation methods from which countries could select what is most applicable to their conditions. It could be discretionary which to choose but then they would have to follow the method as described in the annex.

If this were not to be put in the annex, Italy wanted to see it in the body of the text. The Chairman of the Working group, W. Kakeebeeke, who joined the group at this stage, had concerns that if certain methods have to be chosen and followed, there should be guidance on how to implement them. If there is no such list, the adoption and ratification might be postponed. Denmark suggested passing recommendations on these issues together with the Convention.

When the Chair's draft text was discussed and finalized, it was again confirmed that art. 5 should set out minimum requirements as to what countries should do, and then countries could consider what they might do further according to their legislation (Denmark, Netherlands, Chair). The ECOs came out with a strong statement repeating that the scope of Art. 5 is going to be a significant issue from the point of view of NGOs and the public and suggested that the ECO proposal on the negative list should be at least put in the footnote. This was finally accepted.

Due account of the public participation (5.7)

There was also a short discussion on 5.7 on how to deal with the comments of the public. The first part of the paragraph "due account is taken of the outcome of public participation" was suggested to be a general provision by the Netherlands who also said that the extent to which the comments are taken into account should be reflected in the decision. The UK agreed that the decision should take due account of the comments but also felt that the outcome of public participation was included in the decision itself, and reflecting the extent might cause difficulties for some countries. Russia was against specifying how to deal with comments saying that public authorities should not be burdened with additional tasks, their role is to make the decision or not, and they should not be obliged to explain their decision to the public. The ECOs and the Netherlands defended the idea, saying that reflection does not mean to include or to answer each and every comment but to reflect the essence of suggestions, comments, objections.

Denmark and Italy also came out strongly in favour of the idea, the latter suggesting to add that when the decision is made, there must be an obligation for the public authorities to inform the public and make available information on the decision, including the main reasons on which the decision is based.

At the end of the discussion, the group had to agree what would be in the text of the proposed new version, what would be put in square brackets or as a footnote. When there was no support or only one country supported an ECO or REC proposal, it was put into square bracket or dropped. Provisions 3, 4, and part of 7 were marked as candidates for general provisions.

4.2 Plenary discussion, 20/2/97

The plenary had a brief (3-hour) discussion on the new Article 5 as amended by the informal group over the previous two days.

Scope of decisions (5.1 plus Annex)

The Chair of the informal group presented two alternative options with respect to the scope of decisions covered. Both of these alluded to an Annex consisting of a list of types of activities compiled from the EU directives on EIA (though only Annex 1 of that directive) and IPPC. The first option would require the other provisions of the Article to apply to decisions about projects and activities listed in the Annex; somewhat ambiguously, the 'requirement' would also apply to non-Annexed types of activities 'in accordance with national legislation and taking into account the objectives of this Convention'. The second option (Italy's original proposal) would require, with respect to activities listed in the Annex, 'the establishment of a procedure that permits public participation in the decisionmaking process ...'

The ECOs pointed out that a third alternative had been discussed in the informal group and was recorded in a footnote as a variation on Option 1, namely the ECOs proposal that in addition to the requirement that the Article's provisions apply to activities listed in the Annex, they would also apply to all decisions about activities which might have an effect on the environment, except where, in respect of activities having no more than a de minimus effect on the environment, the Party had provided for these to be exempt in its national legislation. Finland supported keeping the ECO's option on the table.

The ECOs also said that by basing the Annex on the EIA and IPPC directives, there was a danger that many types of development for which public participation was important would fall below the threshhold (e.g the development of a patch of waste ground in the inner city). If annexes were to be used, it was important to distinguish between the goal of developing an industrial/ development Decisionmaking procedure which takes account of the environment and the goal of involving the public in environmental decisionmaking. The threshholds in the EIA/IPPC instruments might be appropriate for an industrial decisionmaking mechanism but were far too high for determining whether there should be public participation or not.

Germany felt the ECO option was too broad, covering an infinite number of activities. It also felt there was a possible contradiction in the phrase in Option 1 'in accordance with national legislation and taking into account the objectives of this Convention'. It preferred Option 2 with the addition of 'as a minimum'.

The Netherlands objected to the second sentence in Option 1, and proposed to refer to 'projects and activities' in the second option.

Notification (5.2)

There was a discussion on which members of the public should be notified. Belgium, Germany and the Netherlands preferred 'the public concerned' over ' the public who is likely to be affected by or who has an interest in the environmental decisionmaking'. Italy was not against 'the public concerned' but felt it needed defining. In Italy, NGOs from anywhere can participate, and Italy felt this should be the same in the Convention. The Netherlands considered that 'the public concerned' did not need defining, whereas 'the public ... who has an interest' would. Russia wanted the matter to be decided at national level.

The ECOs proposed a new paragraph, 5.1A (Annex 15 to this report), relating to the timing, targeting and content of the notification process. This would require the person proposing the project or activity (the applicant) to identify the public concerned and to enter into discussions with and provide information to them, before making a formal application. Thus notification would precede the application. The ECOs proposed an appendix to be referred to in 5.1A, listing suggested criteria for public participation in licensing and permitting.

The ECOs also proposed a new sentence requiring public authorities to 'notify environmental citizens' organisations, that have requested to be notified, of all proposed activities within specified categories.' Russia said that by singling out ECOs, this discriminated against other citizens' organisations. The ECOs said the purpose of standing lists was not to seek elite treatment but to help public participation. The proposal failed to draw governmental support.

Information to be included with notification (5.1(a-d))

In 5.1(a), describing information to be included with the notification, two

options were proposed, one referring to any available information on the possible impact of the proposed project or activity, the other referring to emissions and their effects. Italy preferred to talk about impacts, which (unlike 'emissions') would encompass effects on landscape. Bulgaria felt 'any available' was too broad.

Belgium, supported by REC, proposed a requirement that the notification should include any available information on the proposed project's or activity's 'possible environmental effects'. This was agreed.

In 5.1(b), two options were presented: a requirement to provide information on either 1) 'the nature of the possible decisions' or 2) 'the draft decision'.

Germany said that there would not be a draft decision at this stage, and along with Russia and the ECOs opposed option 2 ('the draft decision'). The ECOs said it was important to involve the public well before the stage of drafting a decision. Italy also preferred the other option, but amended to delete 'possible', so it would read 'the legal nature of the decision to be taken'. Belarus defended 'possible'. The Chair appealed to Italy to live with 'possible'. The Netherlands said that in some cases, such as EIA-type decisions, involvement of the public as soon as possible should mean before there was a draft decision. However, in other cases, the Netherlands felt it could be useful to start a process with a draft decision, and suggested that this possibility should be provided for with the words 'where appropriate'. The Chair said that in any case, the 'draft decision' might be different from the 'final decision'.

In 5.1(d), which sets out a required list of information on the public participation procedure, to be notified to the concerned public, Russia was opposed to having any list, preferring just a simple reference to 'the envisaged procedure'. Alternatively, Russia could accept making the list (items (i) to (vi)) optional, leading in with the words 'which may include, inter alia,'. Otherwise, Russia might need to change its legislation.

REC responded that in the informal group it had been agreed that these were minimal information requirements.

In (ii), it was proposed that the words '[in accordance with this Article]' were redundant and could be deleted. No one disagreed but the words remained in the next draft.

Russia and France proposed to delete (iii), saying it would not be known whether or not a public hearing is needed at the stage of initial notification. Italy felt it was repeating or elaborating on (ii) but was not opposed to it. REC defended it, saying it was different from (ii). It was agreed to incorporate it in (ii).

Russia also proposed to delete (iv) (on the time frame for submitting comments).

Timing of public involvement (5.3, 5.4)

The UK supported 5.3, saying it could be a general provision applying to all decisionmaking types. REC also supported it, saying it provided a link between the information and participation pillars of the Convention.

Participation could not be effective unless there were sufficient time to obtain information.

Russia proposed it should be a recommendation rather than a requirement - 'should endeavour to ensure' rather than 'shall ensure'. Russia said its own regime in any case conformed to the paragraph. The Chair suggested that it would be better for Russia to keep 'shall ensure' to avoid any contradiction with its domestic legislation.

Russia proposed to delete 5.4 (providing for early participation), believing it to be superfluous. The Chair suggested it could be merged with 5.2.

REC said that far from being expendable, this paragraph was another candidate for a general provision applying to all decisionmaking types.

The ECOs supported REC, pointing out that the principle was in the Sofia Guidelines and in the Rio Convention. With respect to the Russian comments, the ECOs welcomed the fact that the principle is contained in the Russian Constitution as well as in various other Russian legislation and sub-legislative instruments. For example, in Russia, an investor must hold public hearings and provide for early participation of the public.

Russia responded by insisting that if the principle were to be kept, it should only have the status of a recommendation ('should endeavour to').

The Netherlands supported retaining the paragraph and elaborating on the need for the public input to be at the right time.

(See also the ECOs' proposed new paragraph 5.1A, which begins with the text of 5.4, and the proposed Appendix, contained in Annex.15 to this report.)

Scope of public input (5.6)

Russia wanted the whole paragraph to have the status of a recommendation, leading in 'Each Party should endeavour to ...' REC defended the obligatory status of the paragraph, reminding the meeting of the proposed logical structure of the article: standards for notification, information to be provided and legally guaranteed public participation possibilities.

The ECOs proposed to delete 'when appropriate' in (a). The right to propose alternatives was important to the decisionmaking process and the attempt to limit this by including 'when appropriate' verged on being a freedom of speech issue. Public authorities would only have to 'consider' these comments, it was not obliging the public authorities to develop alternative proposals. Italy wanted to keep 'when appropriate'.

In (b), the ECOs welcomed the idea that the public should have equal status to other parties in public hearings.

In (c), Russia proposed 'prevent, reduce and control' instead of 'prevent and mitigate'.

The UK said it was not too concerned about the content of these sub-paragraphs; the important thing was that the public should be able to say what it wants. The ECOs agreed with the latter point but said it was important to set out what is envisaged as public input.

In (d), Italy, Germany and Russia wanted to delete the reference to public participation in monitoring. The ECOs reminded the meeting that this was only about the public being entitled to make proposals about public participation in monitoring. If these proposals were stupid, the public authorities could reject them.

Russia went on to say it would be happy to delete (c) and (d). The Chair said if recommendations were to be deleted, logically Russia's 'should endeavour to' should also go.

Belgium proposed to keep the ideas in (d) but to merge (c) and (d) into a single sub-paragraph.

The ECOs proposed a new sub-paragraph (e) giving the right to propose measures for public participation in the enforcement of decisions. The Chair thanked the ECOs for reminding the meeting of an earlier discussion which had not been very fruitful.

Methods of public participation (Annex 3 of Italian proposal)

There was a discussion on the final sentence of 5.6 (in square brackets) referring to an Annex 3 consisting of a list of public participation methods which 'may' be used.

Germany felt the Annex would not enrich the German system. The Netherlands, supported by the UK and France, was in favour of the idea of having documentation on public participation methods but not in an Annex (in fact not in the Convention at all). The UK said it was flexible on this point but did not see the point in repeating non-binding indicative lists in the Convention. The Working Group was facing a short timeframe and there would be time later for the Conference of Parties to develop such lists later.

The ECOs supported the Annex and that said such a list could be enriching for some countries, even if not for Germany. The Chair suggested REC's work on public participation could be useful and that perhaps REC could publish some kind of manual for that purpose. The REC indicated that it would be glad to play this role in the future but also offered to rework the Annex showing what standards for the different recommended methods and good practices would be like.

Italy supported the Annex and the reference to it in 5.6. It suggested to use the Annex as a menu (i.e. optional), but if a method were to be used, then the Parties would be obliged to follow certain standards.

Russia opposed the Annex and any reference to it. It did not want to see the Convention being used as a teaching instrument, and doubted that Eastern European countries would be enriched by such an Annex.

Bulgaria seemed to be in favour of having some guidance on what public participation methods should be used, in order to avoid future complications. If public participation were to be legally required, there should be some standards on how to do it. Bulgaria also brought up examples of other UN guidelines. It was also in favour of public participation in monitoring. Bulgaria has good experience with such involvement in some projects.

General provisions for public participation

The Netherlands circulated to the meeting an alternative (though in some respects overlapping) text consisting of:

- a definition of 'environmental decision';

- a new Article 5 consisting of public participation provisions which would apply to all types of environmental decisionmaking;

- new Articles 5a, 5b and 5c with public participation provisions applying to a) authorisation of activities, b) development of general rules and c) development of plans and programmes.

This was not (yet) discussed.

4.3 Second informal group meeting, 21/2/97

The informal group on Environmental Decisionmaking and Article 5 met again on Friday 21.2.97. This meeting focused on the parts of the new 'Text for Article on Decisions on Specific Activities' (the 'Text') that had not been covered by the group earlier, specifically Paragraphs 5, and 7 through 9.

Present were representatives of Italy, Denmark, Germany, Finland, Netherlands, Bulgaria, Russia, REC, and the ECO coalition. Chairman was Alistair McGlone who almost never put on his UK hat.

The basis for this section of the report is the 21 February version of the Text that reflects the output of the Friday meeting. What follows is a paragraph by paragraph description of the positions taken by the various delegations that gave rise to the changes reflected in the 21 February version as compared to the 19 February version and the written proposals by the various delegations.

Early availability of adequate information (5.5)

The Netherlands, based on its written proposal, suggested mentioning what information should be available apart from the application, and when it should be available to the public, stressing that it was also important for the public to know that there might be information related to the project or activity throughout the process.

Italy said that some information will already be available during the scoping phase and then new information during the decisionmaking. Italy and France supported Netherlands that as soon as information becomes available, it should be provided to the public.

Germany was against this because of problems of confidentiality, and found the fact that different authorities might be involved a complicating factor.

Denmark supported the idea that information produced from the procedure itself should also be provided, but found 'documents' too broad and suggested 'relevant documents specifically related to the project. It also suggested to change 'provided' to 'made accessible' This was supported by the Netherlands and was without opposition, so accepted.

Russia suggested to change 'shall' to 'should' and also proposed to take out the word 'environmental' qualifying the type of information provided.

This latter point was accepted without objection. Russia also suggested to rephrase the paragraph so it should be clear that it deals with information after notification. Suggested text:"Competent authorities should make accessible any additional information needed for public participation in such procedure." The Russian proposal received some support from Italy.

Russia also found (b) and (c) of the Dutch proposal unclear.

The ECOs stressed the importance of timeliness in providing information and were against an exhaustive list. They agreed that there is a system in Art. 5: first an early/prompt notification, then under 5.5, details can be given on the extent of information that should be made available. They supported the Dutch proposal to give the environmental contents of the documents (c), and opposed the change suggested by Russia to use 'should' instead of 'shall' and especially the language about 'needed' information for public participation. Since there was no other support, the Russian proposal was put in brackets.

Finland stated that the provision as written was acceptable.

[Each party] [competent public authorities] -- clarification suggested by Russia. No other support. Put in brackets.

Denmark proposed to change 'provided' to 'made accessible' This was supported by Netherlands and was without opposition, so accepted.

[additional] information [needed for public participation in environmental decision-making] [Note from SS: my notes are sparse on this, but I believe it was a Russian proposal that received some support from Italy.] ECOs opposed the change, especially the language about 'needed' information.

Put in brackets.

'... in order to supplement the information under para 2' - Italy and others brought attention to the connection between this paragraph and paragraph 2. All present agreed that the linkage should be made explicit.

The language 'and in all circumstances before the start of the public participation procedure in decision-making' was deleted as a result of a Netherlands proposal with support from Italy. Italy especially expressed the concern that the language would limit public participation in the scoping stage. This provision had apparently been discussed briefly during the Monday-Tuesday meetings at which time ECOs supported the deletion.

[Note from SS: - Because this deletion had already been discussed and agreed to at the Monday/Tuesday meeting, which I was unable to attend, I refrained from commenting, but one thing that is possibly lost by deleting the language is the idea that at least on some occasions the commencement of the public participation process should be postponed (and the time limits therefore extended) in order to give the public the opportunity to have access to the complete relevant environmental information. This notion more properly appears in the section on time limits, rather than here, but the point should be kept in mind.]

Italy proposed an Annex on requirements for information which as a minumum should be made accessible. The idea of such an Annex was discussed but with no real result (other than to replace 'appendix' with 'Annex') and the reference was placed in brackets. Russia did not agree with the idea of an annex as binding tool; it only wanted a set of recommendations.

Since Russia insisted on putting all its suggestions in brackets, Denmark addressed a question on the rules of applying brackets. It said that so far square brackets were applied when it was a more than a minimal, almost majority view behind a suggestion. Russia answered that there had not been any principles agreed and kept insisting on bracketing its proposals.

There appears to be a sentence missing that would connect the chapeau with new subparagraphs (a) - (c). We did not discuss this. Its omission appears to have been an oversight.

New subparagraphs (a) - (c) came from a Netherlands proposal concerning requirements for information to be made accessible.

Italy proposed that this whole set of subparagraphs should be part of the Annex. Germany stated that it had problems with subparagraphs (a) and (b). Netherlands proposed to insert 'where appropriate' in brackets after the word 'consultation' in (a) but this is not reflected in the Text. Netherlands also offered a correction, changing 'decision' to 'project or activity' in (b). ECOs and REC proposed that 'A survey' should be replaced with 'The content' in (c) but found no support. Both Denmark and Italy questioned subparagraph (c), Denmark asking for it to be narrowed.

Netherlands, ECOs and Finland supported subparagraph (c). The REC wanted to keep the improved (a), (b), (c) and proposed to put them in the text in square brackets as opposed to footnoting. The Netherlands also insisted on the brackets.

Somehow, the words 'for public inspection' at the end of the subparagraph got changed between 19 and 21 February to 'for the public.' This was not discussed in the meeting on 21st (though in the first informal meeting, Russia had proposed it should be changed because of its bad connotation).

Public input reflected in the decision (5.7)

The first question concerning this paragraph was whether it should be included at all. Germany and Italy both accepted that it should be in the Convention. Russia objected to its inclusion at all, then clarified by proposing to change 'shall' to 'should.' ECOs opposed Russia, pointing out the principles contained in the Sofia Guidelines and questioning the commitment of some delegations to those principles. Following this, the Chair was able to get Russia to back down on this one occasion on the 'should/shall' issue with respect to the first sentence of the rewritten text. The second sentence includes both words in brackets.

Italy mentioned that the concept of a reasoned decision was missing from the text. That was supported by the ECOs. Italy presented a new proposed text for the whole of Article 5.7 that was the basis for further discussions: "Each party shall ensure that when the decision has been taken, the public is informed thereof, with appropriate procedures and shall make available to the public the following information: the content of the decision and any conditions attached to the decision, the main reasons and considerations on which the decision is based including the extent to which the comments made by the public have been taken into account."

Germany though reiterated that it could not accept individual notification and this concerns only those who are affected. The Netherlands suggested that the first part of the paragraph (5.7) could be a general provision.

Bulgaria proposed 'the public should be informed of the decision taken by the authority' and 'the final decision should be published'.

Italy's proposal was supported by the Netherlands, UK, Denmark, Germany, Bulgaria, the ECOs and REC.

The ECOs reminded the meeting of the Netherlands' written proposal (Annex 13 to this report), 5a.3, which states that "Each party shall ensure that a final decision will not enter in force before it has been notified to the public concerned .." and expressed the desire that some of the provisions contained in it be retained in the final Text.

A number of phrases were debated, mostly by Italy and Denmark, with the result that portions were placed in brackets, including:

[as to the public participation]

[by the public authority]

All delegations discussed the qualifier to be chosen as to the timing of the informing of the public, with ECOs favouring words such as 'immediately' (also proposed by Italy) and the word 'promptly' suggested by Denmark and finally accepted without objection.

'in accordance with the appropriate procedures' - part of the text proposed by Italy. A gesture towards Russia.

The word 'available' in the Italian text was changed to 'accessible' at the proposal of Russia which was accepted by everyone.

The remaining two bullet paragraphs were part of the Italian proposal and were accepted as proposed, except for the portions placed in brackets, which were objected to by Russia. Prior to the Italian proposal being made, some discussion had already taken place concerning the original (19 Feb) Text, in which Denmark proposed to change 'includes' to 'reflects' (pertaining to the decision taking comments into account).

By the way, Russia mentioned that under its domestic legislation, individual commenters had the right to receive reasoned responses to their individual comments in writing from the authorities, but Russia did not want to commit to providing a reasoned general response to the public justified in relation to all comments received.

Russia expressed the desire to present an alternative text for Paragraph 7 but does not appear to have done so.

Appeals process for public participation (5.8)

Russia proposed that this paragraph was misplaced and should be considered in connection with Article 6 on 'Access to Justice.' Netherlands said that in many countries there is a direct possibility to go to court but in other countries it might be different. The ECOs agreed and cited the Sofia Guidelines which contains such a paragraph (22). Denmark said that the Article should also deal with administrative appeals. The Chair offered to put in a footnote that this should go to Art. 6 and be discussed there. No objection. The text was placed in brackets here.

Anti-harrassment provision (5.9)

Russia proposed that the exact language of the corresponding Sofia Guidelines provision (Art. 24) should replace this paragraph in the text, indicating that could not accept a legal obligation on this issue.

Germany, Denmark, and Netherlands agreed to the extent that this is a basic principle and the Convention should be implemented in good faith. The REC suggested to keep this as a general provision with improved wording. Italy expressed the desire to keep in the current text. There was some discussion of terminology (especially 'penalized' versus 'hindered'). As Article 24 became the basis for further discussion, the ECOs insisted that in the interests of symmetry, the word 'shall' should be introduced in brackets together with 'should' (which appears in Art. 24). Denmark supported this. The whole paragraph was put in brackets.

5. ACCESS TO JUSTICE (Article 6)

A preliminary discussion on Article 6 took place in the plenary. Marc Pallemaerts (Belgium), the prospective chair of the informal group on access to justice, announced Belgium's intention to distribute a non-paper before the fifth session of the Working Group (June '97). This would distinguish access to justice for enforcing the procedural rights to information and participation, and access to justice for challenging general violations of domestic environmental law.

Russia stated that it did not want the access to justice provisions in the Convention to be legally binding. They should be of a purely recommendatory nature. It was willing to go as far as paragraph 25 of the ECE Guidelines.

Denmark raised the distinction between challenges on procedural grounds or grounds that a law has been broken, and challenges against the substance of a decision. Denmark seemed to be in favour of providing for the former more than the latter. ('Should a judge be entitled to overthrow a bad planning decision?') Under Danish law, the latter would not be possible for all environmental decisions. There would be threshholds (for example a small extension to a building would not be covered) and a need to establish an interest.

Germany suggested that perhaps the Convention should only deal with access to justice in the context of infringements of information and participation rights, in Articles 3 and 5 (3.8 and 5.9). The Chair reminded Germany that it had already been decided that there should be an Article 6 constituting an access to justice pillar of the Convention.

Italy, the UK, Netherlands and the ECOs all emphasised the importance of an access to justice pillar of the Convention. Italy said those countries having a problem with this should inform the plenary. The UK, referring to Principle 10 of the Rio Declaration, said it was inconceivable to have such a Convention without access to justice provisions, but on the other hand, it was difficult to say very much in these provisions because countries would not want to alter the administration of their judicial systems. The UK suggested an appropriate right of appeal, promotion of citizens' awareness of their rights and the principle that persons exercising 'their democratic rights' (sic) should not be victimised. The ECOs said Article 6 was a natural development from paras 25-26 of the Guidelines, and that the proposed provisions in Article 6 would not be incompatible with national legal systems even if some changes might be required.

The Netherlands wanted it to be 'decisions' that would be the subject of proceedings, rather than 'matters' (6.1).

France found Article 6 problematic. It was not happy with the 'transparency' requirement in 6.2(a) and said the requirement to encourage legal services to support the public in proceedings would conflict with the French system, where legal services are only provided to foreigners where a reciprocal arrangement exists with their own countries. France also considered 6.4 to be unacceptable, though whether this was due to the transparency requirement or the standing issue was not clear. France did not want to see environmental law given precedence over other areas of law.

Standing

Denmark said that under Danish law, a person needed to be able to show an interest - not just for environmental law but for all law. Denmark would find it hard to accept that any person, regardless of interest, should be able to go to court just where environmental cases are concerned. However, Denmark felt that whereas individuals should have to demonstrate a concern, NGOs should have access to the courts without having to show a concern.

The Netherlands cited the Guidelines (para 26) which stated that standing should be given a wide interpretation in environmental proceedings, but said that to grant access to the courts to persons without their having to show an interest would be likely to cause more problems. The Netherlands proposed to use 'persons concerned'.

Belgium supported Denmark's remarks about special procedural rights for NGOs, saying that consideration should be given to this. Belgium has had such rights for NGOs since 1993. Belgium also reminded Russia about para 26 of the Guidelines (on standing).

6. OTHER ISSUES

On the final day, following a series of interventions (mainly by Russia and Germany but also from others) opposing the inclusion of binding provisions, the Chair reminded the meeting that when their Ministers had set them on the course of developing a Convention, they presumably had more in mind than a set of recommendations.

There was a discussion on which other issues needed to be given priority.

Under Article 7, Denmark, UK, Belgium and the ECOs felt that measures to support compliance were important to discuss. Belgium and Italy stressed the importance of dispute settlement procedures (Article 12).

Italy said the elaboration of Annexes was one of the main purposes of meetings of the parties, and Denmark raised the question of procedures for amending the Annexes. The Chair pointed out that this was already covered between Articles 10 and 11, but Italy said maybe a different procedure should apply where Annexes were concerned. The UK also expressed interest in an expedited amendments process for Annexes.

Russia said that the creation of any institutional machinery requiring financial contributions from Parties should be strictly justified, and on these grounds expressed its opposition to the holding of annual meetings of the Parties and to the development of protocols. Denmark strongly disagreed with Russia about the annual meetings ('otherwise we would just be writing history').

Italy said it might be necessary to have a definition of NGOs in a Convention in which NGOs have such a big role.

The ECOs suggested that the discussion on the definition of public authorities should begin soon as it had a major bearing on the other provisions.

The Chair floated the idea of an article on mutual assistance between Parties.

Belgium reminded the meeting of its earlier proposal for an article on the objective of the Convention. The Chair said this was still on the table.

Belgium presented the meeting with a 'compendium of instruments and other international texts on human rights and the environment in the international and European framework', produced jointly by the Council of Europe and the Belgian Ministry.

ALBANIA: As at the third session, one of the most consistently positive delegations in the 'information' informal group. Supporting 2 week time limit for refusals, and 'immediately and without delay' responses in accident situations. Opposing application of commercial confidentiality exemption to information on emissions. Supporting 2-year frequency for state-of-environment reporting. Quiet in the plenary and not represented in the 'participation' informal group.

ARMENIA: Wanting to increase range of information collected by public authorities, by removing 'important'/'significantly' threshholds in 4.1. However, rather vague on the issue of charges for information, seeming not to support any limitation of charges to what is 'reasonable', or any obligation to publish a schedule of charges.

AUSTRIA: A couple of constructive interventions. Attacked Russia over its fear of binding provisions. Supported ECO proposals on time limits in accidents.

BELARUS: Preferred short definition of environmental information, wanted charges issue to be determined at national level, against officials having to assist public with clarification of unclear requests. On the positive side, supported access to documentation.

BELGIUM: One of the more active delegations, with most of its interventions tending to strengthen the text in both the information and participation discussions. A useful ability to find compromise wording leaning in the right direction. The only country delegation explicitly supporting Option 1 in the environmental information definition and the designation of information officials. Also opposing intellectual property exemption and favouring good access to courts for NGOs.

BULGARIA: Seemed to be attempting to find compromises but perhaps for this reason somewhat contradictory. Against access to actual documentation, preferring Option 2 in environmental information definition. Some positive input to the participation discussions, e.g. supporting the concept of public participation in monitoring.

CROATIA: Mainly positive interventions, supporting 2-yearly state-of-environment reporting and strong active information provisions in accident situation. Defended environmental information definition but wanting to limit to 'state of'.

CZECH REPUBLIC: Opposed requirement for schedule of charges (3.7(b)), but supported mandatory flow of information to public authorities (4.1(b)). Otherwise quiet.

DENMARK: Active and for the most part positive, supporting principle of short time limits in accident situations and NGO access to courts, defending annual meetings of the Parties and opposing threshholds for public participation in project-type decisionmaking. Less happy moments were its failure to defend access to copies of documentation (later it seemed to shift on this and support the public having the option of access to documentation), and its indifference to the choice between Options 1 and 2 in the definition of environmental information. In both cases, it said it would go with the majority, perhaps indicating an Arhus-oriented focus.

Sometimes difficult in the participation discussions but often supporting the ECO/REC positions as well e.g. over the right to propose alternative and the requirement for a public decision to reflect public input.

ESTONIA: Defended mandatory flow of information to public authorities (4.1(b)) and supported availability of certain information in official language(s). Otherwise quiet.

FINLAND: Consistently positive interventions, supporting access to documentation, limits on certain exemption provisions (including the deletion of 'voluntarily supplied information', being the only country so far to support this), shorter time limits and the ECO's proposal on extending the scope of permitting-type decisions in which public participation is provided for. Could still be more vociferous.

FRANCE: Against too many mandatory provisions, preferring recommendations rather than requirements. Therefore, mostly attempting to weaken the text, for example, opposing access to documentation, wanting longer time limits, against notifying requester if request has been referred onward, against mandatory flow of information to public authorities (4.1), against requirements on content of state of environment reports. Against list of methods of public participation being annexed to Convention, and unenthusiastic about Article 6. Positive development: would support 'such as' in Option 2 of definition of environmental information. Also defended 'socio-economic conditions ..' in the definition.

GEORGIA: Supported two week time limit for refusals. Against obligation to assist with clarification of unreasonable requests. Otherwise, quiet.

GERMANY: Continuing to take a hard line against any binding provisions which would go beyond its current domestic regime. Most of its positions seemed to reflect the interests of officials rather than the interests of the public. A few examples: it is against the requester being able to specify the form in, which information will be provided, has problems with health, safety, quality of life etc in the definition of environmental information, wants long time limits and broad exemptions (including wide commercial confidentiality and no public interest test where internal communications or unfinished documents are concerned), wants minimal or no obligations to have information systems facilitating the public, prefers narrow scope of decisions in which public particiption, and wants the access to justice provisions to only apply with respect to information and participation rights. Several times, Germany referred to the possibility that someone might take a law suit as an argument against a particular provision. One small bit of progress: like France, it was willing to accept 'such as' in the definition of environmental information. Otherwise, remains one of the main obstacles to a meaningful Convention.

ITALY: Mixed performance. Favours long time limit (8 weeks), against access to copies of documentation, against unqualified right to propose alternatives (only 'when appropriate'), wants to refer to 'state of' environment only in 1(iii)(a). On the positive side, supports economic and financial analysis in information definition, sees EU directive and ECE Guidelines as minimum for this definition, supports NGO participation without having to prove an interest (though may therefore be necessary to define NGOs), supports concept of ECO proposal on information on Websites.

As before, was very active in the participation discussions, sometimes providing useful support for ECO/REC proposals.

KAZAKHSTAN: Opposes mandatory requirement to gather information (4.1), prefers it to be a recommendation only. Otherwise quiet.

LATVIA: Consistently negative interventions but fortunately not too active. Opposed mandatory flow of information to public authorities (4.1(b), supported minimalist approach on terms of access (4.2), against ECO proposals on Websites, non-technical summaries and information in accident situations.

LITHUANIA: Defended 'socio-economic conditions' in the environmental information definition, and supported publishing schedule of charges. However, against mandatory flow of information to public authorities and wants terms improving accessibility in 4.2 to be optional.

MOLDOVA, Republic of: Mixed input to information discussions. Supporting the less bad time limits option, and supporting ECO proposals for notification of requester if onward referral of request, and on accident information. Strongly opposed to making information available in languages widely spoken, providing non-technical summaries and assisting with clarification of requests, and concerned over costs of Website proposal.

Also, problems with quality of life, socio-economic conditions and cultural heritage in the information definition.

NETHERLANDS: A major disappointment during parts of the information discussions, teaming up with Germany in a deregulatory alliance. Showed a preference for determining matters at national level, opposed to active information obligations being too specific, against the mandatory flow of information (4.1), and preferring Option 2 for the environmental information definition (short exhaustive list). The Dutch written proposal on time limits is particularly weak and in striking contrast to its own quite progressive system. There were some positive elements, notably the idea that there should be one form of access to information which is free of charge. On participation issues, the Netherlands was much more positive, with many good proposals (including its written proposal on public participation provisions).

NORWAY: Played an active and mainly positive role in the information informal group. Supported 2-week time limit for refusals, in favour of circumscribing exemptions on commercial confidentiality and material in the course of completion, supported elaboration of content of state of environment reports and was the only government delegation to support deletion of 'voluntarily supplied information' exemption and to oppose communications between public authorities being covered by 'internal communications' exemption. Problem areas: against keeping public informed of progress of request, against shorter time limits in accidents.

POLAND: Not very active outside the Vice-Presidency role (where it plays a constructive part). Seems to have problem with the idea of a requester not having to state an interest. Supports requester being kept informed of the progress in processing request.

ROMANIA: Sometimes confusing, often negative, occasionally helpful. Attacked the 'any person' principle in the informal group, favoured long time limits, against mandatory flow of information to public authorities, as well as ECO proposals on languages, non-technical summaries and information in accident situations. Supported notification of requester if onward referral, and assistance with clarifying unreasonable requests.

RUSSIAN FEDERATION: An outstandingly obstructive performance. Consistently opposed binding provisions in all three areas of the Convention. Main strategies were:

1) calling for crucial measures to be determined at national level, e.g. definition of environmental information (1(iii)), the basic terms of providing information in response to information requests, including time limits (3.1) and charges for information (3.7), minimum requirements of information appeals mechanism (3.8), active information provisions and terms of access (4.1 - 4.3), and notification requirements in public participation procedures;

2) calling for recommendations rather than legally binding requirements, e.g. with respect to the 'any person' principle in the 'information' pillar, onward referral of requests, procedures for refusing requests, timing of public involvement in decisionmaking, scope of public input allowed in decisionmaking, type of information to provided to public involved in decisionmaking, notification of the decision, and also with respect to the entire access to justice pillar of the Convention; and

3) proposing weakening amendments, e.g. broader exemption provisions (commercial confidentiality, personal data, voluntarily supplied information, internal communications).

In short, Russia gave no indication throughout the meeting that it has any interest in developing a binding international law in this area. Ironically, it even opposed the inclusion of provisions which are already in place in Russian law.

SWEDEN: Finally, Sweden is beginning to share some of its longstanding experience with freedom of information. Among its positive input, Sweden supported access to documentation, defended the 'any person' principle, preferred shorter time limits and keeping the requester in touch, was in favour of circumscribing several exemption clauses (enquiries, commercial confidentiality, material in the course of completion) and was fairly supportive on the Website proposal. Disappointingly, in the plenary it opposed the ECO proposal on information not held by public authorities but required for regulatory purposes, having supported it in the informal group. Also, has problems with the proposed 'whistleblower protection' provision and the requirement of a two-tier appeals process (administrative plus judicial) for information refusals.

TURKEY: Called for the issue of charges to be dealt with at national level, not in the Convention. Otherwise, quiet.

UK: Mixed input, but usually taking a conservative line on the more important issues. Opposing access to documentation, wanting to broaden the exemptions proposed in Draft Elements (e.g. for confidentiality of proceedings of public authorities, commercial confidentiality, enquiries, voluntarily supplied information), wanting to exclude from environmental information definition epidemiological and toxicological data and economic or financial analysis used in decisionmaking, against any time limit of less than six weeks. Showed willingness to defend or explain standard provisions (e.g. 'any person' principle) where more progressive countries stayed silent.

UZBEKISTAN: Favoured narrower definition of environmental information (Option 2), though with soil mentioned explicitly. Against obligation to collect and update information (considered to be redundant), wanted issue of charges to be dealt with at national level, not in the Convention.

8. ORGANISATIONAL AND PROCEDURAL MATTERS

The Chair proposed to establish a small drafting committee consisting of delegates from Albania, Russia, Germany, UK, Poland and Denmark, and a member of the ECO coalition in an advisory capacity. A representative of the European Commission would also attend (capacity not specified). This committee would meet 2-4/4/97 in Geneva to produce a consolidated text (with square brackets as necessary) on Articles 3, 4 and 5 for the June and July meetings. Paragraphs 3.8 and 5.9 would not be addressed but would be left for the access to justice group.

This procedure was agreed by consensus, though Italy registered its disappointment at not being included on the committee.

Future meeting schedule

LIST OF ANNEXES (available on request)

1. Informal group on information's revised Articles 1 and 3

2. Informal group on public participation's revised Article 5, 19.2.97

3. Informal group on public participation's revised Article 5, 21.2.97

4. Belgian proposal for 1(iii)

5. Italian proposal for 1(iii) and 3.1

6. Russian proposal for new para after 3.1

7. Netherlands proposal for 3.1

8. ECO compromise proposal on time limits in Art. 3

9. UK proposal for Articles 3 and 4

10. Secretariat's revised version of 4.1

11. Belgian proposal for 4.2

12. Norwegian proposal for 4.3

13. Italian proposal for Article 5

14. Netherlands proposal for 1(iv), 5, 5a, 5b, 5c

15. ECO proposal for new para after 5.1, plus new Appendix on suggested criteria for participation

16. Russian proposal on entire text

17. Draft report from 4th session

18. Participants list

Disclaimer

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.

Enquiries about distribution of this report or requests for further information should be directed to Jeremy Wates at foeeire@iol.ie or +353-27-51333 ph/fax.