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Cp/043 Mr Johnny LAHURE Brussels, 4 September 1997
Re: The role of the EU in the proposed Public Participation Convention Sir, We are writing to you in connection with the ongoing negotiations over the proposed UN ECE Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking. The draft Convention is supposed to be ready for signature at the 4th 'Environment for Europe' Conference to be held in Arhus, Denmark, in June 1998. We regard the subject matter of the proposed Convention as being of the utmost importance to the European Union and its citizens. The issues of access to information, access to decisionmaking and access to justice in environmental matters fundamentally affect the extent to which NGOs and the general public can influence environmental problems of all kinds. In this letter, we set out our views on the issue of Community involvement in the negotiations and in the Convention itself. Our key concerns are as follows: - The EU institutions should be bound by the provisions of the Convention. This can best be achieved by the Community becoming a Party to the Convention, and should in any case be addressed by including textual provisions in the Convention ensuring that certain international bodies, including EU institutions, are covered. - The text of the proposed negotiating mandate for the Commission should be significantly strengthened. Specifically, it should make it clear that the Convention should go further than existing Community provisions; that EU institutions should be covered; that access to justice provisions should extend to the European Court of Justice and the Court of First Instance; and that legislative processes should be covered in an appropriate manner. At least the same levels of transparency and participation which characterise all other aspects of the Convention negotiations should apply to the EU processes for adopting the negotiating mandate and forming common positions. Ironically, the only forum in the negotiations from which NGOs have been excluded to date is the EU co-ordination meetings. If the Commission receives a negotiating mandate, the irony of this situation would be exacerbated. Specific proposals to avert such an eventuality are presented below.
The need to apply the Convention to the EU Institutions We believe it is essential that the EU institutions are bound by the principles and the provisions of the new Convention. The recent changes to the Treaty on European Union represent some progress in removing the 'democratic deficit' but much remains to be done in this regard. If the EU Member States are willing to commit themselves to a range of new measures through the new Convention, we do not see any reason why the EU institutions should lag behind. The new Convention should include textual provisions which make it clear that international institutions, including EU institutions, are covered by the Convention. Furthermore, subject to three provisos, the EU should become a Party to the Convention. This would copperfasten the goal of ensuring that the EU institutions are covered by the Convention's provisions. The first proviso is that there would be no negotiation by the EU as a bloc on behalf of the Member States and no common EU positions taken insofar as the Convention applies to the public institutions of the Member States. Second, it is imperative that the Community does not act as a 'brake' on progress towards developing a strong Convention due to concerns over the fact that the EU institutions would be covered by the Convention. Particular issues relating to the application of the Convention to each EU institution should be addressed on a case-by-case basis and not used as a reason to weaken the text of the Convention for all Parties. The third proviso is that insofar as common positions are to be adopted in areas falling under EU competence, public participation must be assured as set out below. We understand that even in parts of the Convention where the Community has competence, this would be shared with the Member States (given the 'minimum harmonisation' nature of the relevant EC instruments), so Member States would be entitled to express their positions. However, our concern is that some might not be willing to express their positions openly, leading to a loss of transparency. This problem, and our proposal for a solution, is discussed further below.
Comments on the Commission's request for a mandate The following remarks relate to the Commission's Recommendation for a Council Decision authorising the Community to participate in the negotiation of a Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking. We support much of the analysis in this document, notably relating to the recognition of differing degrees of Community competence with respect to the three pillars of the proposed Convention. However, we believe that if the Community is to emerge from the negotiations as a progressive force for democracy and sustainable development within the ECE region, the Commission should be given clearer guidance on the exercise of its negotiating mandate. In our view, the Council Decision should reflect the three provisos given above. In addition, we have the following comments on the Negotiating Directives: - There should be no back-sliding from existing Community provisions in the three subject areas of the Convention. Negotiating Directive 1, which states that the provisions of the Convention should be 'consistent with relevant Community legislation', is far too ambiguous. Taking into account the recent strengthening of the Treaty provisions on access to information and the fact that Community measures are constantly evolving – as it is already proved by the European Court of Justice in the Carvell and WWF cases concerning access to information (cf. The review of Directive 90/313/EEC), the Council should give a clear message that the positions adopted by the Community in the negotiations should under no circumstances represent any reduction of rights of public access to environmental information, public participation in environmental decisionmaking or access to justice in environmental matters, as compared with those already recognised under Community law. - The notion that the Community should be open to the possibility that the definition of "public authority" include international institutions and therefore Community institutions is to be welcomed but it does not go far enough. The Community should actively support a definition which achieves this, not just one that does 'not exclude' it. - We strongly oppose the rigid position contained in Negotiating Directive 5 on access to justice. Noting the restrictive interpretations of standing issues by the European Court of Justice and the Court of First Instance, and the need to use all avenues available to strengthen the effective implementation of Community law, we call for the same principles to apply to the EU judicial institutions as to those of the Member States under the Convention, and specifically for rights of access to both by environmental NGOs where the protection of the environment is concerned. - With respect to Negotiating Directive 6, we are opposed to any blanket exclusion of legislative processes per se, though we recognise that public participation might need to take different forms with respect to different types of environmental decisionmaking processes. Indeed, the latest draft text reflects this view, although the provisions relating to legislative processes have yet to be developed. The Community's position should be based on the perspective that democracy embraces participatory, as well as representative democracy. The views of parliaments should also be sought on this issue.
NGO participation in the EU decisionmaking process on the Convention One of the features of the negotiations over the drafting of this Convention is the relatively open and participatory nature of the drafting process. Environmental NGOs have been afforded access not only to the sessions of the Working Group responsible for the drafting process, but also to each of the informal groups and small drafting groups. As well as being able to observe the proceedings in each of these fora, NGOs have been among the most active participants, in theory increasing the likelihood of a final text which meets the needs of the public as well as the needs of governments. The prospect of the European Commission obtaining a mandate to negotiate on behalf of the EU Member States, at least for some parts of the Convention, has raised an important question: will NGOs be granted the same level of access to the EU co-ordination process as to the other parts of the negotiations? Indeed, this is not just a question which arises as a future possibility in the event of the Commission being granted a mandate to negotiate on behalf of the Community. Already, the delegations of the EU member states have been holding formal co-ordination meetings in advance of the more recent sessions of the Working Group, from which NGOs have been excluded. The EU member states have on two occasions held informal consultations with a representative of the EU part of the Environmental NGO coalition, and we welcome this fact. However, this is no substitute for NGO participation in the EU co-ordination process on the same terms as in the rest of the process. We submit that it would be an extreme irony if the EU countries, which pride themselves on providing the lead in Europe on both environmental and democracy issues, were to prove to be the most secretive caucus of countries within the context of these negotiations. The EU should be providing the lead in the ECE, both with respect to the environment and with respect to democracy. If this situation is not addressed, it could mean in practice that whereas the formal input of any non-EU country to the negotiations is subject to public scrutiny and comment, the input of an EU country might be presented only within the confines of the EU co-ordination process, thereby having an influence on the common position (or even the informal precursor of a common position) without the public being aware of this. While some of the EU member states might be more than willing to reiterate their positions in the ECE Working Group (as they would be entitled to in a 'mixed competence' situation), others with less popular views might prefer to exercise their influence away from the public spotlight. There would be a clear loss of accountability in this case. We are therefore requesting you to allow mandated representatives of EU-based environmental NGOs to attend and, at the invitation of the Chair, participate in i) any discussions in the Council on the request for a negotiating mandate, ii) the EU co-ordination meetings on the Convention, both before and after the granting of a negotiating mandate, and iii) the meetings of any 'special committee' or the equivalent as described in the Commission's request for a mandate. With respect to the relevant Council meeting(s), we submit that the provision under the rules of procedure for Council meetings allowing for meetings to be subject to audio-visual transmission to the public (Council Decision 93/662/EC, Art. 6.2) should be availed of in this case. We look forward to your reply, Yours sincerely, John Hontelez BirdLife International mara.silina@foeeurope.org - Public Participation Campaign - webmaster |
