NOTES ON NEW DRAFT CONSOLIDATED CONVENTION TEXT, PRODUCED AFTER THE MEETING OF THE SMALL DRAFTING GROUP ON 11-15 AUGUST 1997, IN GENEVA

Present: Chairman of the Working Group (W. Kakebeeke), Albania, Bulgaria, Denmark, France, Germany, Italy, the Netherlands, Poland, Russia, UK (Chair), Ukraine (2 days only), European Commission and NGO Coalition (Peter Roderick)

OVERALL ASSESSMENT OF THE WEEK:

The group was, by all accounts, more difficult than the previous small drafting group in April. Reasonable progress was made in removing square brackets and towards creating (at least) an impression of moving towards agreement, although there was not enough time to discuss Articles 4-9 (save for the shall/should issues in Article 5). On the overall detail, however, from the ECOs standpoint there were many more setbacks than advances, and several of our advances were no more than prevention of setbacks.

On the positive side, there was agreement to include 'built structures' within the environmental information definition (albeit in sub-paragraph (c)), and to include 'no derogation' wording in Article 2; access to actual documentation appeared to be accepted in principle; there seemed to be a consensus that the commercial confidentiality exemption should be qualified; the requirements for informing applicants of time extensions for answering information requests, for written refusals and for passing on requests seemed to be less unacceptable than previously; the resolved shall/should points in Article 5 came out in favour of shalls; and some text on ECO attendance at meetings of the Parties was generally accepted.

On the other hand, meaningful text proposed by ECOs on integration of the pillars of the Convention (Article 2) was rejected in favour of warm meaningless words in, what is now, an over-loaded Article 2.1; text was introduced in square brackets which would allow a public authority not to supply information in the form requested even where it held it in that form (3.1(c)); time limits have been harmonised everywhere in favour of months, each time giving public authorities more time; a number of countries do not want the public interest test to apply in all cases, including to commercial confidentiality; and there was no support for including non-compliance mechanisms in the Convention.

One disturbing matter, which emerged as a result of the remarkable reaction of a number of the group to the ECOs' wish to add text to Article 16, was the willingness of the EC Commission at least to consider signing a Convention which could apply to EC institutions when it might not have (or would not be given?) the power to bind those institutions. Given the previous experience of the Commission taking the view that it was not bound by its own Code of Conduct on access to documents, this raises a key issue of accountability and democracy which should not be swept under the carpet.

NEW DRAFT CONSOLIDATED TEXT

NOTE: views expressed by members of the small drafting group were without prejudice to positions to be taken by their delegations in the Working Group.

RECITALS

The Chairman prepared a shortened version of the Recitals which the group amended during a relatively short discussion. The Belgian, Italian and Dutch proposal (as a part of the proposed Article 1) was not discussed, or touched save for the incorporation of the 2 Options to produce one bracketed text.

Specific ECO proposals in Recitals: 'electronic forms of communication' (para 9); on education in para 10 (amending our original proposal after consultation with Bulgaria - see end of this report for original proposal); 'furthering accountability and transparency' (para 11); 'including organisations' in para 14, after Italy questioned the original ECO suggestion for 'including their organisations' (which I now see is the formulation in the definition of the public'!).

Paragraph 15 is square-bracketed, pending resolution of Article 1 and associated Recitals.

ARTICLE 1 was not discussed.

ARTICLE 1bis - DEFINITIONS

(ii) "public authority" The new (d) and slightly amended old (d)/new (e) were ECO proposals. Denmark supported their inclusion in square brackets, as they made clearer the issues we were dealing with. The Commission also supported the insertion of (d), but were not yet in a position to agree it.

There was a short discussion of the meaning of 'international bodies', with the Chairman of the Working Group asking whether we needed a definition, and whether international Conventions were clearly covered (eg, the 5-State Rhine Convention). France considered that there was "little chance" of (e) staying in the text. Denmark then tentatively suggested deleting (e), but Italy objected, citing the example of a joint Italian/Slovenian/Croatian environmental information collection centre.

(iii) "environmental information" Italy and Bulgaria agreed to the inclusion of landscape in (a), even though it was a 'mistake', and there was general agreement to the ECO's suggestion to include 'built structures' in (c).

In (b), the compromise text of 'cost benefit and other economic analysis and assumptions' was decided upon after Germany and France expressed concern about the ECO's suggested 'analysis, calculations and assumptions'.

Also in (b), ECOs suggested that 'the environmental elements referred to in sub-paragraph (a) above' should read 'the elements of the environment', as (a) was inclusive and it would be better to use the same wording if we meant the same thing. Germany and Poland regarded this suggestion as uncontentious, but Bulgaria wanted it to remain because they did not see (a) as inclusive! The compromise settled upon is better than the previous wording, but is not wonderful - but it is the Bulgarian interpretation, rather than the actual words, which give cause for concern.

There was a short discussion regarding the current absence of a definition of 'environmental decision-making'. The Chairman suggested that it was clear that it covered Articles 5-8, but Germany and ECOs said it went wider, ECOs adding that this would be worrying in the context of the environmental information definition. It was decided not to discuss the matter any further.

(iv) "the public" ECOs, supported by Denmark, Bulgaria and Netherlands wanted to add 'without prejudice to the foregoing' after "and" and before ", in accordance with", to make it absolutely clear that national legislation and practice could not be used to derogate from associations, organizations or groups which had legal status. But France had some unspecified problem and so the amendment was not taken up.

(v) "the public concerned" Phew! The first half of the definition is the result of agreement in the group to delete, at Denmark's suggestion, 'having been directly' and to insert '[sufficient]' at the UK's request. Italy's suggestion to delete 'affected' was not accepted after Bulgaria and France objected. The second half of the definition is the product of a smaller group which met late one evening to thrash out the extent to which enviro NGOs would be covered (Bulgaria, France, Germany, Italy, Netherlands and ECOs), and this was the best we could do. The issue is not so much whether enviro NGOs can participate - certainly not in relation to industrial permitting - but whether they can go to court, where Germany's position remains unchanged. The current definition leaves open the question of defining 'interest', to which we must return, perhaps in the main text.

During the smaller group's discussion, Italy and France, particularly, objected to NGOs being informed of permitting applications after they've asked. How could we make sure that we knew who to inform, they asked?!!

ARTICLE 2 - GENERAL PROVISIONS

Article 2.1 This is now a mess. It is trying to do too much.

ECOs put forward our proposal for integration of the pillars of the Convention/compatibility, as promised to the Plenary. I'm not sure that everyone understood what we were trying to do, but early on Bulgaria suggested a minimal 'compromise' wording to be inserted into 2.1 and France suggested merely adding 'consistent'! The result is that both suggestions were included in 2.1, and the ECOs' proposal (amended under (a) to get Italy's support for (a) and (b), and with Poland's support for (a) but not (b)) was inserted as Article 2.1A.

Article 2.2 The first part has been considerably watered down, and the second half has disappeared.Whilst Denmark were happy to leave the entire text in with shall, Bulgaria, France, Germany, Netherlands, Poland and UK all wanted one kind of dilution or another. Their expressed concern was how they could ensure compliance down to the lowest levels of government. The result is all but meaningless.

Article 2.3 This was not discussed, in view of the ECO's promise to the Plenary to produce text on it within the context of the public participation pillar (which we did - see at the end of this report, Article 4 bis, General Provisions).

Article 2.4 The amended version was accepted after an Italian proposal, despite ECOs maintaining that training might be necessary in some countries.

Article 2.5 This remained untouched, after a brief discussion in which ECOs suggested the deletion of 'for'.

Article 2.6 We ended up with '[more stringent]', after the Chairman, initially supported by Bulgaria, France, Denmark and Russia, suggested the words could be deleted; the Commission had suggested their replacement by 'additional'; Poland indicated that there was not a good Polish translation and Italy (and subsequently Bulgaria) supported keeping the words!

New Article 2.7 This wording was the result of a discussion regarding the ECO's proposal for an additional sentence at the end of 2.6, the spirit of which was supported by Denmark, France, Netherlands and Poland. Poland remains concerned that the new 2.7 is not wide enough to cover interpretations.

Article 2.8 This was amended after a Danish suggestion to deal with German difficulties with its meaning and Poland's difficulties with understanding 'principles'. This paragraph will have to be re-visited in the context of the definition of 'public authority'.

ARTICLE 3 - ACCESS TO ENVIRONMENTAL INFORMATION

Article 3.1, chapeau The group agreed, following an Italian proposal, to delete the brackets around the text concerning the principle of access to documents, but inserted brackets around 'where appropriate'. On being asked by the ECOs to give examples of where it might be appropriate not to provide actual documents, the UK said that it could be necessary, for example, where it might identify officials or would involve disclosing or hinting at other information.

Article 3.1(b) This was amended after Albania, Germany, Poland and the UK supported 'stated'.

Article 3.1(c) The new formulation, essentially in square brackets, is a UK 'compromise' proposal which goes backwards. ECOs pointed out that a public authority would not have to provide the information in the form requested even if it held it in the form requested!!!! Germany was the only country to express a difficulty with the previous wording, and said they might be able to provide compromise text, but had to consider the implications of a recent court decision in this regard.

Article 3.1(d) After some discussion, correctly, the first part of the old 3.1(d) was retained here in square brackets, whilst the old stand-alone following paragraph was removed, in square brackets, to become a new Article 4.1(c). The Netherlands and Italy said they did not think that 3.1(d) as it now is was needed and seemed to have difficulty in understanding the ECOs' point, supported by Ukraine, that not all authorities in all States would give out such information immediately and without delay.

Article 3.2 The new text is a setback as a result of calculating the time limits in months (in both cases), but the square brackets were removed after Bulgaria and Germany thought they could live with the new wording. Bulgaria seemed to be under the impression that, under Bulgarian law, an extension could be made without a 'decision' to that effect, and so could accept the new text. Extending the 8 weeks to 2 months was suggested by Germany and supported by the UK and the Netherlands, all of whom will have to amend their law in any event. ECOs strongly objected to the change to 2 months, to no avail.

Article 3.3(c) There was no discussion of Article 3.3(a) & (b). Art 3.3(c) is now a bit of a mess, and was the result of a Dutch proposal amended by Denmark after the discussion was begun by an ECO proposal (see end of this report) to insert 'where such communications may not be disclosed under national law'. We were supported by Denmark, Ukraine and Italy, but opposed by Bulgaria. Indeed, Italy, Denmark, Ukraine and Russia supported the entire deletion of (c), France said we should consider whether it could be deleted and the Commission queried what the difference was between (c) and 3.4(a). Poland said that it might be able to support France, and wondered whether the choice was between 'internal communications within' authorities with no qualifier or 'between' with a qualifier. Germany said that the 'between' point was currently part of infringement proceedings under the EC Directive by the Commission and so for now the brackets had to remain.

The whole way in which Article 3 makes mention of 'national law' needs to be further addressed (see below).

Article 3.4, chapeau This was mainly the result of a UK amendment - and improvement - to bring the public interest balancing test up to the start of Art 3.4, further amended by Italy to include the reference to national law, though France thought that it might be more appropriate to put this test at the end of Art 3.1. Two main issues came out of the discussion.

Firstly, some countries have difficulty with applying the public interest test to all the exemptions: e.g., international relations (Denmark), national defence, commercial and personal confidentiality (Netherlands) and France regarded it as all "very complicated". The Netherlands said that they would "object to the end" on this, and wanted to "give a signal to the NGOs to think about it". Germany also has problems.

Secondly, what exactly is meant by national law in this context requires clarification. ECOs said that our intention is that national law in this context means national law other than that implementing the Convention - i.e., information should always be provided unless there are other provisions of national law which prevent it, and simply repeating the listed exemptions in the Convention was not enough. This was not expressly responded to, but it seems that other delegations have different views. In any event, it was agreed for now that these words would remain in square brackets in the chapeau and we would look later to see, exception by exception, whether we should remove the references from the individual exemptions.

A fairly (and intentionally?) rapid discussion of each of the exemptions followed:

Article 3.4(a) An ECO proposal to limit this exemption to those public authorities which were not privatised bodies was objected to by Denmark and received no support.

Article 3.4(b) There was no discussion, but later Germany said that the term 'public security' could mean anything and that it should be tightened as, on a wide interpretation, it could cover, for example, public transport. Human rights instruments could be considered in this regard.

Article 3.4(c) Germany could live with removal of the brackets, but noted that this matter was subject to the Commission's infringement proceedings and they would need to make a reservation in Plenary.

Article 3.4(d) The text in the first square brackets is as proposed by ECOs (see end of the report); and the text in the second square brackets is as proposed by France (and supported by Germany and Poland), who said that commercial confidentiality must be qualified. Denmark, Italy, Poland and the UK variously supported the first part of the ECO text, but the Netherlands objected to any of it being taken out of square brackets. Nobody answered the ECOs point that 'industrial' should be deleted as it was not clear what it meant beyond intellectual property.

New Article 3.4(e) It was agreed to put the intellectual property exemption into its own sub-paragraph and to await further consideration, after the view expressed by Belgium (and the ECOs) that it was conceptually wrong to include this head of exemption as it related to use, not to providing copies.

New Article 3.4(f) The two previously-footnoted suggested amendments were inserted, after the Dutch had wanted 'does not consent'.

New Article 3.4(g) & (h) There was no discussion of these exemptions.

Article 3.5 This was the formulation finally agreed upon, with 'as promptly as possible' being chosen after concern was expressed at the problems of complying in all cases with an express time limit (eg, if an official was sick).

Article 3.6 This was amended by the express inclusion of environmental agreements after the intervention of Norway and the Chairman of the Working Group at the last Plenary. The meaning of the paragraph was explained by the Chairman and ECOs at France's request. Bulgaria had some difficulties with it, and an informal attempt by Bulgaria and ECOs to come up with wording to incorporate it with Art 3.5 failed. No opposition to the intent or drafting of the paragraph was expressed.

Article 3.7 There was no discussion of this paragraph, save to change 'supply' to 'make available' at ECO's suggestion.

Article 3.8 There was much discussion of this provision, which was trying to cover 4 things: time limit for refusals; form of refusals; reasons and information on appeals. The discussion focussed to begin with on the relationship with Art 3.2. Several Government representatives felt that symmetry was needed and that this should mean that the refusal period should be two months, but Poland thought it could live with 30 days/one month. ECOs pointed out, however, that refusals should be made earlier and that we had to strike a balance between political refusals and genuine difficulties in making the decision. Although the new draft is a drafting improvement, two months has been inserted in square brackets. Bulgaria continues, however, to have problems with having to give written refusals, but France supported the requirement. In an aside, Poland indicated that Bulgaria could get away with not providing written refusals because of the 'within the framework of national legislation' but ECOs disagreed with this interpretation.

Article 3.9(a) This was agreed upon after Russia withdrew its suggestion of adding 'in accordance with national practice' at the end, upon Denmark's request, justified by saying charges would always be reasonable if in accordance with national practice!

Article 3.9(b) There was no discussion of this provision.

ARTICLE 4 - [DUTIES WITH RESPECT TO] ENVIRONMENTAL INFORMATION There was no discussion of this Article, save to insert a new Art 4.1(c) in brackets by moving up the old Art 3.1(d), second paragraph.

ARTICLE 5 - DECISIONS ON SPECIFIC ACTIVITIES There was limited discussion of this Article, mainly focussing on the shall/should issue, but with one significant potential advance based on a French proposal. (Only paragraphs discussed are mentioned below.)

Article 5.1 The new second sentence of Art 5.1 was the result of an interesting French proposal, amended by ECOs, which emerged during discussion of shall/may in the old version. ECOs pointed out that it would not require a permitting procedure where currently one was absent, and France said that it did not want to have to introduce new procedures in this way, especially in respect of agriculture. The UK said that the old draft was the attempt to find middle ground between those who wanted Article 5 to apply to specific projects and those who felt that approach was too restrictive. Poland had suggested 'shall, to the fullest extent possible...also apply'. ECOs, supported by Denmark, wanted the inclusion of 'appreciable' but Italy expressed doubts about this word as any effect which could be detected would be appreciable. The UK said that the new second sentence was not supported by them.

Article 5.2 The first sentence was amended, particularly at Italy's request, in view of the 'public concerned' definition and its wish to change 'notified' to 'informed'. It became clear that they wanted this provision to mean no more than a newspaper advertisement in many cases. The second sentence was not discussed (although it was discussed in the smaller group during the 'public concerned' discussion). The final sentence leading into (a) is not, now, to say the least, very elegant.

Article 5.3 This was amended to be in line with Art 5.2 and to correct the reference to 'Article 2'.

Article 5.4 Germany and ECOs wanted 'shall' and not 'should' in the first sentence, but the French representative said that she would have to speak to her Minister, as this would require some changes to their law, and so could not accept 'shall' for now.

Article 5.5 Germany had a problem with the 'shall' in the first sentence (on grounds of cost, apparently) and so the 2 alternatives had to remain for now.

Article 5.6 It was agreed to remove 'should' in the first sentence, but Italy wanted 'should' in the second sentence and so the 2 remain there.

Article 5.7 There was no problem in removing the 'should' in the first sentence. However, France has to check current difficulties with the closing words of 5.7(b) ('including the extent to which it reflects the comments and objections made by the public') before it can agree to 'shall' in the second sentence.

Old Article 5.8 This was removed as the matter is now to be dealt with in Article 9.

New Article 5.8/old 5.9 Germany expressed a problem with this provision as then drafted, because it required laws to be made. ECOs, supported by Denmark, suggested an amendment to broaden the scope, which Germany did not like, but eventually it was adopted. The ECOs' wish, supported by the UK, to extend the provision to information and justice, and to move it to Art 2, was noted.

ARTICLES 6 - 9 These Articles were not discussed.

ARTICLE 10 - MEETING OF PARTIES The week actually commenced with a discussion of Articles 10-21. Russia agreed to the removal of the brackets around the entire Article.

Article 10.1 This paragraph has been simplified, and the qualifier to annual meetings put in following a Danish suggestion. The Chairman pointed out that Espoo provided for meetings after the first meeting to be held 'at such other times as may be deemed necessary by a meeting of the parties or at the written request of any party' subject to 6 months' notice and one third support. Italy supported Denmark, saying that Espoo was too weak. Denmark and the Chairman said that the rules of procedure would determine how a decision to 'decide otherwise' would be taken, but Italy disagreed, pointing to Article 14. (This was a recurring theme for Italy through the week. It wanted to make clear how decisions were to be taken generally where it was stated that matters would be 'approved', 'established' etc.. Italy wanted all decisions to be by majority, except for the rules of procedure - but the Chairman of the Working Group said this was not up for discussion as it had not been discussed in the Plenary. Denmark said that it was an idea worthwhile discussing in the Plenary). Denmark expressed concern that it was unclear whether the parties could only decide otherwise for the next year, or for ever, but the Chairman said this would be resolved by the rules of procedure.

Article 10.2, chapeau The Chairman of the Working Group suggested the words on reporting in square brackets, after Italy's view that reporting was meant to be covered by Art 10.2(a). ECOs wanted a fuller provision on reporting in connection with non-compliance, which is included in the new draft in brackets as Art 14bis.2(c).

Article 10.2(a) This was amended at the suggestion of ECOs (and the typo corrected).

Article 10.2(d) It was agreed to remove the square brackets.

Old Article 10.2(f) This was removed in view of the new Article 14bis.

Article 10.2(g) There was no discussion on this, as it was to be considered under Article 4 (though it was described by the Chairman as 'controversial', Russia expressed concern with it and Germany was opposed to it being obligatory, although it recognised that it was very much related to the field of the Convention)

Article 10.3 This provision was inserted at the request of Denmark, but there was no discussion of it.

Article 10.4 Option I was developed by the group (after a small group consisting of Bulgaria, Denmark, France and ECOs had produced a suggested text - see end of this report). Option II is an amended version of the original proposal for (then) Article 10.3 tabled by ECOs during the last Plenary. Option III is an Italian proposal.

There was quite a long discussion over 2 days, beginning with consideration of the ECO proposal. The main issues were: should there be a provision on this in the Convention or should it be left to the rules of procedure? should there be any qualifying restriction on the nature of organisations who could attend? how should the possibility of exclusions be dealt with? and, should NGOs be more than simple observers? (The account that follows is simply for the benefit of those wishing to get a flavour of what happened in a long discussion over a couple of days and a small group meeting.)

ECOs said that there should be a specific provision on the face of the Convention which reflected the degree of participation which ECOs had had hitherto in the development of the Convention; that there should be no qualifier (such as national level NGOs), as this was a democratic Convention dealing with the rights of all citizens and their organisations, and very often local or smaller organisations had very relevant experience; the three-quarters threshhold for exclusion, in the original ECO proposal, reflected the desired basic principle that the right to be admitted in a Convention of this nature should only be denied in the most rare circumstances. ECOs argued that there should not be a reference in the text to NGOs being admitted as 'observers', as this suggested a role much more limited than the one we were playing in the negotiations so far. Limitations should only be on the basis of practicalities.

The Chairman, describing the proposal as 'innovatory', mentioned that these matters could be dealt with by the standard rules of procedure provision, (referring to Espoo, whereby organisations had to be 'qualified' and had given prior notice and were not objected to by one third of the parties) and that full participation would include the right to vote.

Denmark was supportive, pointing out that there were at least 3 Conventions with detailed rules covering the attendance of non-parties (esp. Bern and Bonn Conventions). It said that we already have the category of 'observers' and 'parties' and we could, if we wanted, be innovative by creating a new category of participation without voting rights, if we wanted. It suggested the need for a reasoned objection.

France wanted 'classical rules'. In the small group it mentioned the need to keep the possibility of exclusion on political grounds, and so did not want a 'right' to participate (even though it is in the Bonn Convention). It did not want hundreds of NGOs turning up to some grand congress which would change the nature of the meetings of the parties and so there was a need for some restrictions (esp. to exclude local and small organisations). France also wanted separate provisions for international organisations (although they were dealt with together in Bern), and for there to be the possibility of private meetings, perhaps provided for in the rules of procedure. France also thought the three-quarters figure to be "much too high" (cf. one third in Bern).

The Netherlands supported the original ECO proposal in principle but considered that it could be dealt with in the rules of procedure and not in the Convention.

Italy said that it was 'fantasy' for NGOs to have a status beyond observers - (a provision in the Bonn Convention gives the right to observers to participate without voting rights!). It feared having thousands of requests (have we got nothing better to do?!) and wanted the right of participate, which should be in the text, limited to national and international NGOs.

Bulgaria supported the idea of general rules in the Convention, with details in the rules of procedure.

Germany wanted to say something about governmental organisations (so it could control the Lander!); and would be happy to give NGOs the right to participate actively and everything up to the right to vote. The representative said he didn't know what an 'observer' really meant.

Poland was concerned that there were no criteria for the objection. This was not a routine Convention, yet we were applying routine rules. It suggested that the number of NGOs entitled to participate could be determined by a percentage of the parties.

Russia wanted the conditions for participation to be left to the rules of procedure.

ARTICLE 11 - RIGHT TO VOTE It was agreed to remove the square brackets. ECOs raised the issue of Regional Economic Integration Organisations (REIOs - see further below under Article 16).

ARTICLE 12 - SECRETARIAT No substantive discussion on the text (but it led to a discussion on reports - see further below under Article 14bis.2(c)).

ARTICLE 13 - [ANNEXES] Russia wanted to keep the square brackets and the Chairman of the Working Group pointed out that countries had not yet had a chance to consider the Annexes in translation.

ARTICLE 14 - AMENDMENTS TO THE CONVENTION The old Art 14.2 (11.2 of Draft Elements) was deleted as being unnecessary in view of Art 10.2(h).

ARTICLE 14bis - IMPLEMENTATION AND COMPLIANCE This was one of the main discussions of the week. The text which emerged as Option I was the result of a long group discussion, during which ECOs introduced our text submitted at the last Plenary. Option II is an Italian proposal, drawing heavily on the Montreal Protocol which was the cornerstone of Italy (and Russia)'s position. The discussion was also informed by a Secretariat compilation of material, comprising: I. An article entitled, Analysis and evaluation of monitoring and compliance procedures of international environmental law, by Laurence Boisson de Chazournes, January 1993 II. Report from the group of experts on the file procedure concerning EC States, Strasbourg, 12 October 1995 III. The Options for non-compliance provisions in the Convention, from the UK, NGO Coalition and one option drafted (but not introduced) by the Secretariat IV. Protocol on further reduction of sulphur emissions V. Montreal Protocol

[For the record, the Secretariat's proposal was as follows: Article [] IMPLEMENTATION AND COMPLIANCE 1. The Meeting of the Parties shall at its first session consider and by consensus adopt a decision that establish a procedure for monitoring compliance with the obligations under this Convention. The objective of this procedure shall be to assist Parties having difficulties in fulfilling their obligations under this Convention. It shall aim at finding satisfactory solutions to specific problems in respect of the implementation of the Convention, and monitor the chosen means of solution. 2. The procedure shall allow for and promote public participation, eg. in the form of reports, complaints, attendance at Meetings of the Parties in accordance with article 10 etc. 3. The procedure shall be simple, open, transparent and non-confrontational, and it shall be without prejudice to the provisions in article 15.]

Overall, there was a general unspoken consensus that the Convention should go beyond the UK proposal, and also that the provisions should in some way reflect the fact that this was not the usual kind of environmental treaty. There was no support, however, for ECOs' proposal of including full provisions in the Convention now, as opposed to leaving it till the first meeting, but there was informal discussion of developing the text if there was time/including it in some other way at Arhus (eg, in a declaration).

There was general support for the idea of public participation in the mechanism, particularly from Italy which also said that the ECOs' suggestion of a Committee "in principle is not a bad idea" meriting consideration. Italy's proposal was said to be based on the Montreal Protocol, the UK's draft, inclusive of public participation and moving in the direction of the Committee suggested by ECOs. Italy also wanted the mechanism to be adopted by majority not consensus.

Poland asked ECOs how we saw the Committee being financed, and this led to a discussion during which Denmark stated that it would produce text on financing and budgets to be debated at a proper time (now Article 10.3 in the consolidated text).

ECOs agreed to work on drafting group text without prejudice to its proposals, and saw 3 elements as crucial: public participation, independence and binding powers.

Germany had no problem with independence. but 'strongly advised' against any binding provisions. The UK said that it would not be possible to have the Bern/Espoo Convention principles if it was to be independent.

Denmark wanted express reference to resolutions and recommendations.

France, supported by Denmark, considered that it might be possible to say that the procedure and institutional mechanism was established now, with the details to follow, but this was not taken up.

There was a long discussion on the purpose of the mechanism - should it be to help? or to 'punish'? The objectives listed in 1(a)-(d) were put in square brackets (ECOs having to insist on (d)) on the basis that it was not appropriate, at this stage, given the premise that the issue would be put off till the first meeting of parties, to determine the underlying philosophy - they could all, in fact, be deleted. The Chairman of the Working Group said that the trend was to move away from sanctions towards 'how can you help'. Poland said that it was not appropriate to talk about 'those with difficulties...' as this was not a technical Convention, and France expressed the same reservations, but Denmark said it could include legal advice on forms of legislation.

ECOs said that it was also important, if the matter was to be put off to the first meeting, to ensure in some way that ECOs could be involved in the development of the proposals in advance of the meeting. Italy and Denmark said it would be difficult to include a provision of this nature in the Convention, but Denmark said that a resolution of the Arhus Convention could include it (eg, by asking the Secretariat to convene a preparatory meeting to the first meeting of the parties with NGO involvement).

'Decisions' is in square brackets in 2(b), to keep open, at ECO's request, the possibility of binding provisions.

Art 14bis2(c) is the ECOs' proposal, supported by Denmark, on reporting. Denmark and France suggested that there could be no provision on reporting in the Convention at all, as they were often 'useless' and did not give a true picture. Italy and ECOs supported reports, and the draft was formulated so as to have focused reports and taking up a French suggestion to have to report measures taken to implement the Convention.

'Independent' was inserted in to Art 14bis.3 at the ECOs' request, as was the square-bracketing of the second sentence, so as not to prejudice the possibly binding nature of the procedure and institutional mechanism.

ARTICLE 15 - SETTLEMENT OF DISPUTES This remains in square brackets, as France wanted to delete it, saying that it could not imagine how there could be a dispute between the parties, as opposed to maybe with citizens. Germany also questioned what room there would be for this Article in practice, and the Chairman believed that it had no function at all in practice but that it would give the wrong signal to delete it. The Chairman of the Working Group pointed out that it could be useful, as sometimes Governments are prepared to take over the position of citizens. Denmark wanted to extend the provision to Protocols.

ARTICLE 16 - SIGNATURE ECOs proposed adding at the end of this provision the words 'or to which provisions of this Convention apply' - or, put another way, how can you animate Government officials with the fewest number of words? Currently, the EU will not be binding itself by becoming a Party to the Convention in so far as its institutions will be covered by it (as opposed to where it has joint or sole competence vis-a-vis the Member States). The UK indicated that the EU can only assume obligations where competence has been transferred, and that the proposed text would excite a degree of controversy which was possibly unintended and open up a huge debate. France could not have responded more directly if I'd made a personal insult - it wanted no discussion of the matter. ECOs raised the matter again under Article 18.3, Clearly, there is a major issue here - the extent to and manner in which EU institutions can be bound under international law - which neither the EU nor the Member States should brush under the carpet.

ARTICLE 19 - ENTRY INTO FORCE Sixteenth' was square bracketed as France said there should be a lower number of ratifications etc. for the Convention to come into force.

ANNEX I This was re-worked technically by Italy, after a discussion between Germany, Italy and ECOs, which simply made the Annex internally consistent. The problem was that the old Annex I was a combination of 2 overlapping lists (from the EC EIA and IPPC Directives). The intention was to use the IPPC (generally lower) threshholds where there was overlap. Both ECOs and Germany mentioned the fact that only the mandatory list of projects from the EC EIA Directive was included (about 40 out of 130 projects!).

END OF EXPLANATORY NOTES TO DRAFT CONSOLIDATED TEXT.

Below are the NGO Coalition Proposals tabled during the week, along with the 2 proposals from the small groups on 'public concerned' and NGO attendance and participation at Meetings of the Parties (8 separate texts in total).

ONE 11 August 1997

NGO Coalition Proposal

regarding the Preamble (endnote 8, 'GVA6053' refers)

Whereas it is desirable that environmental education is promoted and that educational institutions are encouraged to further the understanding of the environment and sustainable development, in particular by children, such as by providing specific curricular programmes and training addressing such issues and by encouraging widespread public awareness of and participation in decisions affecting the environment and sustainable development

TWO 11 August 1997

NGO Coalition Proposal regarding the definition of public authority

Article 1 bis

DEFINITIONS

Amend Article 1bis (ii) (c) & (d), and add an additional sub-paragraph, as follows:

(c) Any other natural or legal persons performing, under the control of a body or person falling within subparagraphs (a) or (b) above, public responsibilities, functions, activities or services in relation to the environment;

(d) the institutions of any regional economic integration organisation referred to in Article 16 which is a Party to this Convention**; and

(e) other international bodies under the control or exclusively made up of Parties.

** Footnote: This is proposed on the basis that the European Union will become a Party to this Convention.

THREE 14 August 1997

Proposal on definition of 'public concerned'

(following discussion between Bulgaria, France, Germany, Italy, Netherlands & NGO Coalition)

Article 1 bis

DEFINITIONS

(v) "Public concerned" means the public affected or likely to be affected by, or having a [sufficient] interest in, the environmental decision-making and, for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have a [sufficient] interest.

FOUR 11 August 1997 09h30

NGO Coalition Proposal regarding 'Integration of Pillars'

Article 2

Insert an additional Article 2.1A, as follows:

1A. In order to achieve compatibility between the measures implementing the information, participation and justice provisions of this Convention, each Party shall ensure that: (a) the terms of public availability of environmental information and other information used in environmental decision-making, including terms relating to time limits, allow for the public to: (i) prepare for and participate in any environmental decisionmaking process in accordance with Articles [...] effectively and on an informed basis; and (ii) prepare effectively and on an informed basis for exercising any right to access to justice in accordance with Article 9; and (b) any right to access to justice in accordance with Article 9 may be exercised by those entitled to receive information or to participate in environmental decision-making under this Convention.

FIVE 11 August 1997

NGO Coalition Proposals

Article 3

ACCESS TO ENVIRONMENTAL INFORMATION

1. Internal communications Article 3.3(c), up to the first square bracket, would be amended as follows: (c) The request concerns either: (i) material in the course of completion; or (ii) internal communications within a public authority where such communications may not be disclosed under national law

2. Confidentiality of proceedings of public authorities Article 3.4(a) would read as follows: (a) The confidentiality of the proceedings of a public authority under Article 1bis (ii)(a) or (b)

3. Commercial confidentiality Article 3.4(d) would be read as follows: (d) commercial confidentiality if disclosure of the information would cause significant financial damage to an economic interest as a result of the information being used by a competing economic interest to further similar objectives and provided that the information requested does not concern the use of public funds

SIX 15 August 1997

NGO Coalition Proposal re Article 2.3 & General Provisions

Delete Article 2.3 and insert a new Article, as follows:

Article 4bis

GENERAL PROVISIONS ON PUBLIC PARTICIPATION

1. Each Party shall ensure that public participation shall be provided for within a transparent and fair framework prior to those decisions, defined under national legislation, which may have an appreciable impact on the environment.

2. Such participation shall commence early and at a stage when options are still open and effective public participation can take place, shall include [reasonable] time-frames for different phases and shall allow [sufficient][reasonable] time for the public to prepare and participate effectively.

3. Each Party shall actively provide information on how the public can participate and ensure, where appropriate, that the relevant public authority shall provide additional assistance and information to the public.

4. Each Party shall ensure that in making its decision due account is taken of representations made during the public participation.

5. The foregoing provisions of this Article shall apply in respect of decisions under Articles [5-8 inclusive], in addition to the provisions of those Articles.

SEVEN 12 August 1997

Proposal regarding Meetings of Parties (following discussion between Bulgaria, Denmark, France & NGO Coalition)

Article 10

MEETING OF PARTIES

Insert new paragraphs 3-5 at the end of Article 10, as follows:

3. Any body or agency, either governmental or non-governmental, which has experience in matters relating to the environment or the subject of this Convention, may inform the Executive Secretary of the ECE, at least three months before any meeting of the Parties, of its wish to be represented at that meeting.

4. Non-governmental bodies or agencies shall be admitted to that meeting unless at least one month before the meeting [one third] [three-quarters] of the Parties have informed the Executive Secretary of the ECE of their objections. Further criteria for such admittance may[, on the basis of practicalities,] be provided for in the rules of procedure.

5. Provisions for the [full] participation of any body or agency admitted to a meeting of the Parties shall[, on the basis of practicalities,] be set out in the rules of procedure.

EIGHT 13 August 1997

(1) Refined NGO Coalition Proposal on Meeting of Parties

Article 10

MEETING OF PARTIES

Insert new paragraphs 3-5 at the end of Article 10, as follows:

3. Any non-governmental body or agency promoting the objectives of environmental protection and with experience in the subject matter of the Convention may notify the Executive Secretary of the ECE at least three months before any Meeting of the Parties, of its wish to be represented at that meeting. The Executive Secretary shall inform the Parties of such notifications.

4. Such a body or agency shall be admitted to, and have the right to participate fully (without voting rights) at, such a meeting, subject only to paragraph 5 below.

5. Without prejudice to paragraph 4 above, the rules of procedure may provide, inter alia, for such restrictions as are necessary for practical reasons on the number of such bodies or agencies who may be so admitted.

(2) NGO Coalition Proposal on reports

Article 14 bis

IMPLEMENTATION AND COMPLIANCE

Insert a new Article 14bis.2(c) as follows:

(c) provide for the submission of reports consisting of: (i) measures taken to implement the Convention; and (ii) suggestions for improvements, if any, in access to information, participation and justice.

END.