PART I: International Dimentions

6.1 Introduction

The EU is a unique product of a series of agreements among sovereign states. It has developed its own peculiar institutional structure and decisionmaking processes. In some areas, it has taken competence from its member states; in some areas, the competence is shared; in some areas, the member states have retained all their competence and the EU has no authority to act. (Even its name generates confusion since the EU, as such, does not exist. This name has replaced "European Community" in general usage, even when not formally correct, and will be used here.) In short, the EU is sui generis, a system unlike any other.

As the EU has grown from a community of six to the present 15 member states, a complex, multi-layered system of decisionmaking has evolved (see chart below). This system reflects the constant tug between the reluctance to yield national sovereignty and the pull towards multilateral solutions in matters of consequence to all the member states.

The Institutions of the EU
EUROPEAN COMMISSION Responsible for developing and proposing legislation. The Commission is headed by a President and made up of a commissioner from each member state (two from the five largest members).
COUNCIL OF MINISTERS Has the power to adopt legislation, on a proposal of the Commission. The Council is made up of one minister from each member state (the Minister of Agriculture, Transport, Environment, Foreign Affairs, etc. depending on the subject matter). The larger member states have more votes but the proportion does not reflect population size exactly. The Council of Ministers is not to be confused with the European Council. This is the name given to the meeting (usually twice a year) of the heads of government (in the case of France, the head of state) of the member states.
EUROPEAN PARLIAMENT Less powerful than either the Commission or the Council, although it is gaining increasing power to decide, with the Council, on legislation. The Parliament also has the right to approve the Commission as a body; to approve the budget; and to approve the enlargement of the EU with new member states. The Parliament currently has 626 members (MEPs). The number of MEPs for each member state again does not correspond precisely to population.
EUROPEAN COURT OF JUSTICE Sits in Luxembourg with 15 members and decides questions of interpretation and application of EU law. The European Court of Justice should not be confused with the Court of Justice, established under the European Convention on Human Rights which sits in Strasbourg.

The environment is, of course, one of those areas in which multilateral, international agreement is most necessary. The EU has responded in this area with more than 200 legislative acts. Most of these were adopted unanimously.

Increasingly, however, as a result of successive amendments to the treaties governing the EU, decisionmaking in the environmental area takes place on the basis of qualified majority voting. (A qualified majority is approximately equal to two-thirds of the total of the votes of the member states in the Council of Ministers.) In adopting agreements by a form of majority voting with binding force over those in the minority, the EU differs in an important way from the intergovernmental fora where decisionmaking on treaties and other instruments almost always takes place by consensus (see chart above).

The current negotiations on the revision of the Treaty on European Union (Maastricht, 1992) are likely to continue this trend, especially since they are taking place with the upcoming enlargement of the EU to Central and Eastern Europe very much in mind. The existence of veto power for each member state is problematic enough in a Union of 15 member states. Its preservation is nearly unthinkable for an expanded Union of 20 or more members. To permit any member to retain veto power is a recipe for decisionmaking paralysis.

Another notable trend in the decisionmaking structure of the EU is the increasing power of the European Parliament. Originally empowered only to give its opinion on legislation proposed by the Commission and adopted by the Council, the Parliament is increasingly attaining the status of co-legislator with the Council. Again, the upcoming Treaty revision is likely to reinforce this development.

The Union that the newly democratic countries of CEE will be entering is one with a well-developed body of environmental legislation. Most, if not all, environmental decisions will be taken by qualified majority voting in Council and in co-decision with the European Parliament.

The EU is of great significance to these prospective members already, however. In anticipation of future membership, they are already modeling their laws on the EU's. Thus, what the EU has adopted, or will adopt, is of particular significance. Moreover, the EU shares a long border with these prospective members, so the EU's legislation also has transboundary significance in the border region between EU and non-EU member states.

As discussed below, EU environmental law can also be used by non-EU citizens, including residents of CEE countries. In particular, the EU directive on freedom of access to environmental information gives the same rights to non-EU citizens as it does to EU citizens. The following sections discuss a number of EU legislative acts and programs that are of relevance to public participation in a transboundary context.

6.2 The Environmental Impact Assessment Directive

As far as public participation rights are concerned, the Directive contains several notable provisions. These provisions can be said to have introduced important developments in public participation practices in many member states. They can be expected to have a similar important effect in new member states from the CEE region.

The Directive requires the member states to make any request for development consent (a license, planning board approval, etc.) available to the public. Equally, the information gathered in connection with an EIA must also be made available to the public pursuant to Article 6(2).

Article 6(2) of the Directive also requires the member states to give the public concerned the opportunity to express an opinion before the project is initiated. It is, however, left to the member states to determine, if desired on a case-by-case basis, the public concerned and the appropriate method of consultation pursuant to Article 6(3). It would have been preferable had the Directive stated that the opportunity for public comment must come before the decision on the project is made, instead of before the project is initiated. This is presumably what was meant since the right to express an opinion on a project after the project has been initiated would be an empty one.

Article 8 requires the information gathered, including the opinions expressed by members of the public, be taken into consideration by the public authority in the development consent procedure. Article 9 requires the public authority to inform the public of the content of the decision and, if member state legislation so requires, the reasons for the decision.

The Directive also makes special provision in Article 7 for consultation between member states in cases where a project is likely to have significant effects in another member state (see Box 26).

This consultation may take place at the initiative of either member state. The Directive requires the information gathered in connection with an EIA to be passed on to the affected member state. Notably, there is no requirement that the public in the affected member state receive this information, either from the member state where the project will be carried out or from the affected member state. It is up to the member states themselves to ensure that the method of public consultation that they set up permits public participation by residents of other countries.

The Directive carves out broad areas of exception from these information provision requirements. Article 10 authorizes member states to withhold information falling under national rules and practices regarding industrial and commercial secrecy and the safeguarding of the public interest. These exceptions may be very broad indeed. In transboundary situations, the limitations in the laws of the member state where the project is to be carried out take precedence over those of the member state affected.

Notably, the Directive provides only for consultation between member states. There is no obligation to consult with a neighboring country that is not an EU member state. One might argue, however, that the spirit of the provision would certainly be violated if no such consultation took place. The ESPOO convention, discussed in Chapter 5, would impose such an obligation on the countries that are party to it.

6.3 The Access to Environmental Information Directive

The Directive establishes the general rule that any person may request information relating to the environment from public (and quasi-public) authorities. The person making the request need not show any interest in the information requested.

The structure of the Directive is thus a broad one. The Directive contains a broad definition of environmental information, a broad definition of what a public authority is and a broad general rule of access. At the same time, it also establishes broad exceptions to the general rule of access. These many exceptions have, in practice, been extensively used to refuse requests. The utility of the Directive in practice, like the EIA Directive, has thus been limited.

The Directive is potentially of great significance for members of the public in other member states and in countries outside the EU. This is because the Directive gives the right of access to environmental information to "any person." The Directive does not restrict access to citizens of a particular member state or even to citizens of the EU. Therefore, a person in Spain may request information from a public authority in France or Portugal or Italy, etc. So too can a person in Hungary, for example, request information from those countries in the same way (see Box 30).

If the request for information is denied, the possibility of appeal available to a citizen of the member state are also open to the requester from another country. To date, however, the right of a person in another country to request information held by a public authority in an EU member state has been little used.

It is worth noting that the Directive permits a reasonable cost to be charged for providing information. In most member states, charges are, in general, reasonable (see Box 28). In some member states, notably Germany, blatantly excessive charges have frequently been assessed.

The Directive leaves it to the member states to define the practical arrangements for access to environmental information. Thus, time and place of inspection, the establishment of information points, and the manner and form of supplying information can all vary from member state to member state and among the public authorities of a member state. Requests for information may also specify the form in which the information is to be provided (for example, on disc). Practice reveals that, where possible, public authorities do attempt to supply information in the form requested.

Since the right to request information extends to any person, the Directive can be a useful tool in obtaining information from public authorities in the member states. The Directive does not apply, however, to the institutions of the EU itself. The Commission and the Council have their own rules on access to documents. The Commission's rules are comparable, though more restrictive, than the Directive. The Council's access to information leaves much to be desired.

6.4 Other instruments

The so-called post-Seveso directive is aimed at controlling the risks of major industrial accidents. It provides for the setting up of notification systems to warn the public in the event of an accident. For residents of CEE countries, these provisions can be of significance in the event of an accident in a facility near a border with a non-EU member state.

The European Commission has also had the establishment of a pollution emissions register under discussion. Such a register would require industrial facilities to collect data on chemical use and emissions and to make this information available to public authorities and the public. The public is understood to be primarily, but not only the people, living or working in the vicinity of an industrial facility. A separate directive is not currently contemplated; rather, this point may be included in weakened form in the Integrated Pollution Prevention Control (IPPC) directive. Also under consideration is the adoption of proposals for civil liability for polluting activities. These proposals are still being discussed and it is too early to say how the discussions will turn out.

6.5 Programs

PHARE and TACIS are the principal assistance programs for CEE and the former Soviet Union, respectively. Both have been severely criticized for their spending practices. Public input into decisionmaking has been minimal. Access to information about projects has been difficult, particularly for residents of the countries concerned.

These problems threaten to repeat themselves as far as the TENs for transport are concerned. The transport TENs are major infrastructure projects, including both road and rail corridors, several of them designed to link Western and Eastern Europe. The projected routes run, in many cases, through protected or other valuable natural areas. For example, the A20 motorway, running across northern Germany and linking Lubeck and Stettin, crosses the Peene Valley, a special conservation zone under the EU Habitats Directive. Nevertheless, the EU has ruled that the destruction of the protected area is justified "by imperative reasons of overriding public interest." Access to information on the TENs program and on particular projects is hampered by the lack of access to Commission documents (see paragraph 6.3).

6.6 Avenues of appeal

With no effective right to judicial review, individuals and organizations must rely on complaint procedures. The Commission complaints procedure is open to anyone who wishes to write a letter. The exchange of communications between the Commission and the member state concerned and other aspects of the investigation are secret, however. The handling of a complaint often takes years, moreover. For example (but not a transboundary one), when Dutch citizens and organizations complained to the Commission about the failure of public authorities to conduct an EIA for a series of projects to strengthen the river dikes, the Commission investigation concluded that the citizens were right and that the authorities had improperly failed to conduct the necessary EIAs. Unfortunately, the Commission reached this conclusion only after the engineering projects in question had been completed. If pursued to its end, a complaint can result in the Commission taking a member state to the European Court of Justice.

Even if the Commission does not proceed fast enough or far enough with a complaint, making use of the complaint procedure can have important benefits. It lets the authorities know that there are citizens and organizations who are watching their actions and who are willing to take a public stand on issues that concern them. Complaints can also have an influence, if not on the project concerned, then on future government actions. For these and other reasons, exercising the right to complaint can be an important form of public participation.

The Parliament has recently established an Ombudsman function. Complaints can be submitted by citizens of the EU or any natural or legal person resident in a member state of the EU. It is too early to tell what impact the Ombudsman will have in bringing Commission abuses to light. It is likely the Ombudsman will have more of a role to play in bringing specific instances of misconduct to light than in challenging overall policy or programs.