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Meeting in the Ministry for the Environment (BMU), Bonn, 8th August1997

-- Negotiations of the ECE Public Participation Convention (PPC)---

Present: Eckart Meyer-Rutz, H. Wessels (BMU), Roda Verheyen, Joachim Spangenberg (BUND)

This document will be circulated to everyone dealing with the PPC. It contains firstly a short summary, secondly some general statements and perceptions of the German position and thirdly a summary of the specific issues (Articles of the PPC) that were discussed. If you have any question, please don't hesitate to contact me by e-mail. The meeting in Bonn has been arranged by BUND in order to clarify the German position vs. the convention and it was held right before a meeting of the small drafting group, which took place august 11th-15th 1997. (See Jeremy Wates' reports on the 6th session of the Working Group). In the following, I refer to Numbers of articles of the PPC as they are laid down in the consolidated draft of the PPC dating from August 6th 1997, submitted by the secretariat.

1. Summary On balance, the meeting was useful for both sides. We could make some points that could/will influence the German position, discussed most of the important issues and made our general motivation with respect to certain provisions in the PPC clear. The discussion was very open and we were assured better communication and co-operation between BUND and the BMU for the developments/ negotiations still to come. We were asked to make several written proposals (wording of articles or paragraphs) and will receive the minutes of the German interdepartemental (all relevant Ministries) meeting on the PPC. This will be useful in order to make sure our arguments cover the concerns (and misunderstandings!) of the other Ministries which are the real "brakes" of the progress. Germany is certainly one of the most reluctant countries when it comes to openness and citizens rights. It is a challenge for the ECOs to convince the German delegation to approve certain provisions of the PPC and it is to my understanding extremely important that we start action in the parliaments in Germany as well as in other countries, maybe also in the EP. Negotiating in complete silence will allow the German representatives to act more conservative than they could otherwise. We agreed with the BMU representatives to meet again in January/February 1998, when the negotiations really have to focus on the text to be adopted in Aarhus. Meanwhile we will contact the BMU whenever it seems important. In order to act effectively, I need information from the NGO Coalition. Jeremy Wates did an extremely good job sending me specific information on the German position without which I would not have been able to argue the way we did in the BMU.

2. General statements The BMU delegates stated at the beginning, that we were "only" discussing an ECE Convention and that its binding force was very limited. On the other hand, in the course of the discussion, we noticed that the main driving force for the German delegation to try to weaken the Convention is the influence a strong Convention could have on further developments in EC law. One of the first points they mentioned was the assessment that the Commission will get the mandate to negotiate the PPC for all member States. This is definitely true for the 1st and 2nd pillar of the Convention while the situation for the 3rd pillar (access to justice) is somewhat more complicated. The intention is not to accept detailed PPC provisions covering more (going further) than the current EC legislation does because this will prevent discussion on the EC level (revision of the Environmental Information directive, the EIA directive and the future negotiations about the Strategic EIA directive). We argued that a harmonisation is useful with respect to the enlargement process and competition (!). They argued that an ECE convention was not the right place to establish a strong regime - that was for the EC to do.

But:

The Germans obviously take the PPC more serious as it sometimes seemed from the outside. Politically, they want to adopt a 1st and 2nd pillar that in principle reflect the current EC and national legislation. Not more. When it comes to the 3rd pillar, the German position is to reject anything that will mean an obligation to change national law on access to justice.

The other main argument against a strong and detailed PPC was that the Convention will not be enforced in most of the countries that will sign it, thus it would be more productive to adopt some more general provisions that can become reality in administrative practice. Generally, I find arguments like this very arrogant and a little imperialistic. This is of course an argument, which could be applied to all international agreements and we had a long discussion about standards of compliance with several Conventions in different countries until we agreed that even if the enforcement of the provisions of the PPC might not be ideal in a lot of the party countries, this was no reason for Germany to hinder a strong Convention. We argued that many of the negotiating countries are more open towards freedom of information and public participation than Germany is. It was interesting to hear that the German delegation obviously is not very well informed about the administrative systems and practise in most of the other ECE countries. They argued that it was silly to try to adopt detailed provisions when the systems they were to apply to were extremely different. But to what respect the systems are different and where the enforcement will really be a problem was not expressed. We stated that it might be useful to extend the dialog between countries in order to learn about the modalities of administrative practise. Since this was only a very general debate, it is impossible to sum up the outcome of it, but we felt that there has been some understanding. We agreed that Germany will at least not hinder the adoption of provisions that are already binding law in Germany (which is most important for the 2nd, but also for the 1st pillar).

We then also discussed the ECJ case against Germany treating malenforcement of the Environmental Information directive. [For those unfamiliar with this: the Commission argues that Germany has violated EC law by not fully enforcing the Environmental Information directive. We adopted a law (Law on access to information relating to the environment) and it interprets the EC provisions as restrictively as possible. There are several provisions the Commission sees to violate EC law. Basically, it is the exemption clause "no information to be provided when there is an administrative proceeding still going on" (the German authorities interpret "proceedings" as covering every movement within the relevant body which means that this exemption clause pretty much makes it impossible to obtain relevant information) and the provision about charges. There are other issues, but they are not as important in the eyes of the PPC.] There is a gap between the perception of winning chances (the BMU is quite realistic: A lot of people in the BMU and most legal experts in Germany find it very possible that Germany will lose the case as a whole) and possibilities to accept provisions in the PPC that would contravene Germany's arguments in the case. Since nobody knows when the EJC will decide on the case, it is a big challenge for the BMU representatives (who also think that the German viewpoint is legally and politically wrong) to agree to such provisions in the Convention (relating to charges, refusal of information because of ongoing administrative proceedings etc.) It seems as if the BMU will have to keep all its reservations here. Negotiating, the NGO-Coalition should try to point out Germany's dilemma and make the delegates state whether they really think their resistance will be successful

3. Specific issues Naturally, we were not able to discuss all articles or problems we have with the German position. I tried to touch most of the issues Jeremy put forward to me as priorities, though.

Art. 1 Objective

The German delegation had a problem accepting the original proposal by the Belgian delegation because of its ecocentric character. The provision as it is now might be accepted, but still has to be discussed with other ministries. We had a huge debate about a right to a clean and healthy environment when our constitution was revised (reunification process) in 1993/94 and it is unlikely that Germany can accept a strong provision here and now within an ECE Convention. We argued that the Art. 1 as it is now is just a precise form of what is binding law in Germany now (the obligation of the state to protect human health etc in Art. 2 II of the German Constitution) and that was agreed on. We should try to argue in this direction at the drafting group meetings if the German delegates still do not agree to the text.

Art. 1 bis

There was absolutely no way of convincing the BMU representatives of including bodies acting in legislative or judicial capacity in the definition of "public authority". We argued, that the parlamentarians should be asked before answering this question for them - it was agreed that the way, the Convention is negotiated is contraproductive: exclusion of the public and the parliaments. The BMU will think about ways to inform both about the progress. But they kept is argument, the PPC cannot change the representative democracy while we argued that better access to information will not harm the democratic system but improve it.

iii.a) The inclusion of "climate" was found useful, they will think about it.

iii.b) Long discussion about the "economic and financial analysis used" - we argued that inclusion of this should be evident since it is administrative practice in Germany. Material used for taking a decision related to the environment (take a construction permission) is subject to legal review. which means that it has to be opened by the authorities. We argued that in complicated proceedings, it was vital for any NGO or individual to receive the criteria because of which an assumption was made. We got a promise that they would think about whether this was really already covered by the German laws and if it was, not to object any more. (I wonder whether a more general wording would be better here: ,All criteria, material, documents used to take the ... decision")

iii.c) The BMU does not have a problem with this definition of environmental information, but the ministry of health does. We argued that human health and safety, as well as cultural sites are covered by different instruments of German law already and that the inclusion of those issues in the PPC was necessary in order to harmonise standards in Europe. The BMU delegates agreed that there was actually no reason to object to this any more (unless the ministry of health makes them which is unlikely if they don't push it!!)

v. Public concerned - they want to delete the whole sub paragraph-. If there are good reasons for keeping it, explain them to Meyer Rutz; I wasn't able to. We argued that a definition like this belongs in Art. 9 - but I am not sure whether we all understood what was meant.

Art. 2 2.2. Shall - Should: We argued that the wording of this paragraph had already been changed (from one specific person to assist and provide help to more general terms) and the BMU representatives agreed that the paragraph should not be a problem any more. They promised to think about a "shall".

2.7. There were different understandings of what this paragraph actually means. We argued that it was evident that if a binding convention is adopted, the parties to the convention have to promote its goals and principles. The BMU argued, that the paragraph was meant to restrict negotiation margin in other international relations. The drafting group should try to make the meaning of this paragraph clear (???)

Art. 3 3.1.c) We argued that there had been a decision of the German high administrative tribunal on this issue and that the provision without brackets would almost reflect its views: It ruled that if there were good reasons for a requester to request the information in a certain form, the public authority has to give it out in that form. There is no freedom of choice for the authorities which form to use. We then argued that if it was completely unreasonable to make the information requested available in the requested form, the paragraph would still leave some discretion to the authority to decide (administrative law in Germany leaves a proportionality-test to the authority). We agreed that it would be a challenge for lawyers to determine what a ,excessive and unreasonable burden" would be and that it might therefore be better to not define at what stage the authority may refuse but to leave that to national administrative law. We argued that requests for information are usually easy to fulfil by the authorities and that there must be a right to receive information in the form requested - generally - and the BMU agreed.

3.1.d) The BMU wants to delete the paragraph because it is evident that there is no refusal-discretion for the authorities if there is immediate danger for human health. We argued that this might be the case under German law, but not under the law of all negotiating parties. It might therefore be important to keep a provision like this. This was approved and we agreed that a better, easier wording must be found. Are there any proposals by ECOs?

3.2. Information of the applicant of the extension of the period - we argued that this was not only practise in Germany but also extremely important in the case of "political refusals" - otherwise there would be no restriction to authorities to try to solve political controversy by ,waiting", not giving individuals or NGOs information before the crisis is over. This was understood and I think, they might revise their position here. Strategy: Remind them at the next drafting group meeting and make them explain why they object. We also argued, that generally spoken, a period of 30 days or eight weeks was long, but we did not discuss this further. The Germans are in a difficult position here: The BMU negotiates but it is also (and more important) the federal states' authorities that will have to comply with the provisions of the PPC. They of course try to hinder short periods here.

3.4. Head "adversely" affect - we argued that it was impossible to refuse information just because some interests were affected. This is also in line with the German law structure: an interest has to be adversely (negatively!) affected in order to be protected by law. It is the ministry of economy that wanted this objection. We made clear objecting here would be doing the work of industry lobbies. We did not come to conclusion on this. If the German delegation keeps this up at the 6th drafting group meeting, we'll have to address this in a more detailed manner. (--> Tell me!!)

3.4.a) and c) see above - ECJ trial - Germany cannot change its position now, unless we prove that there is absolutely no chance of winning the case...

3.4. Tail - public interest test: We argued that this was administrative practise in Germany anyway, but we agreed that not all of the exemption grounds can be "weighed" according to German law. I suggested to put "adversely" in the head of Art. 3.4. and apply the public interest test wherever possible. I have to admit that it will be impossible to weigh up the interests in the case of commercial and industry confidentiality - it is strictly protected under international agreements and under national laws. We argued that there should be at least be an interest test where it is obvious that the information concerned is ,vital" to human health' concerns. We have to discuss this further! My perception was that the German delegates would like less detailed exemption grounds and would then also accept the public interest test. Maybe that is even better?

3.5. Transfer of requests to other bodies - I think, we made clear that this is of immense importance to individuals not being familiar with the structure and competencies of public authorities. It felt as if they won't object to this any more, if they do it is because of the federal countries' opinion. Good chances of convincing them.

3.8. Long discussion. We argued that there must be a written refusal to both oral and written requests as this is the practise in Germany. The BMU said that there was no obligation for the authorities to do that and that we might have to change the administrative law because of this provision. We argued that it was vital to have something written in hands for appeal and also as a proof as such. I reminded them, that practise in Germany is not practise everywhere and that the countries have to take the PPC obligations serious: If there shall be a third pillar, written refusals are necessary. This was approved, but no real promise was made. If the Germans still object to this, we'll have to improve our arguments.

3.9. Charges. Germany can live with "reasonable" charges - the ECJ case will show whether the German practise is legal. I suggest we try to put a subparagraph: If no information is supplied, the requester cannot be charged.

Art. 4 In general, Germany does not have many problems with this Article as it reflects more or less German (construction - environmental protection- nature conservation) laws.

Art. 5.4 This article is a problem since it is too complicated and in a way unsystematic. The first sentence could be approved if the rest is laid down in the guidelines (annex). We suggested that there could be new ways of informing the public about projects prior to permits or licences procedures. I argued that the Baltic states have invented new procedures and that Germany might finally take up something modern (laugher). The whole issue is extremely unclear and the NGOs should try to make a new proposal. What do we really want here? Meyer-Rutz would like to discuss this with Jeremy or Peter also.

5.6. We agreed that there should be a new paragraph requesting a public hearing (practise in Germany for some procedures, not for all!! E.g. construction law, industry permits etc.)

Art. 6 We argued that there will be an EC strategic EIA directive in the near future and that the provision in Art. 6 is too general to determine the negotiation process in the EC. They agreed that there is no good reason to object to this.

Art. 7 The BMU argued that a provision like this was not needed since it was practise in Germany. We argued that firstly, this does not mean that we have to object to this if it is practise and secondly that it is not practise in Germany to really inform NGO and the public on a very early stage in discussions about laws etc. We agreed that the provision is so general that it doesn't harm anybody. I argued, that this in particular is a very important issue since we all know that the other side's lobby is always involved in drafting new laws and directives and is informally noticed before anybody else. They agreed. I think we should try to come up with a some more detailed version of this article. This might also be a chance for us to improve German law!!

Art. 9 Big problems with everything that goes further than the review procedure with respect to the rights deriving from the PPC itself. As I already explained to Jeremy, we have had this discussion (especially whether NGO should have legal standing) for ages and the government under Kohl is completely unwilling to move one step. They will definitely not move negotiating an ECE Convention. Therefore: 9.1. can be approved, 9.2. of Option II cannot be approved without "individual rights that have been impaired" 9.4 of option III is unclear and opposed by the ministry of justice. "Finance barriers" has been opposed by the ministry of finance (of course)

Unfortunately, we did not have time to discuss this any further. Since we knew that the German position is like a rock in this field, we didn't insist. I think, we should try to do this when there is a better version of Art. 9. Moreover, I will try to write down how the article could be formulated in order to fit better in the German perspective. Otherwise, the only thing we can do is try to make Germany move by bits.

Art. 10 and the following were not discussed, but we were asked to submit an opinion in writing. I need help with this!

Roda Verheyen, Aug. 12th 1997

BUND (FOE Germany) Dep. International Environmental Policy